L.C. v. P.B., 2021 BCPC 131

Citation: L.C. v. P.B. 2021 BCPC 131 Date: 20210513 File No: 182585 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.C. APPLICANT AND: P.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE

Counsel for the Applicant: A. Huang, by video Counsel for the Respondent: I. Phillips, by video Place of Hearing: Sechelt , B.C., via videoconference Date of Hearing: May 11, 2021 Date of Judgment: May 13, 2021 [ 1 ] These parties originally appeared before me on May 14 and 15, 2019, on issues relating to their child. The hearing was originally set for two days but the time estimate was inadequate. The trial continued on June 6, 2019, but still did not complete. I made an order on that day for Dr. Nicole Aube to prepare a full s. 211 report. [ 2 ] The trial completed on September 18, 2019. I issued written Reasons on October 2, 2019, where I set out a parenting time

schedule for P.B. I also ordered that the parenting time

schedule be reviewed after receipt of the s. 211 report. [ 3 ] Dr. Aube completed her report on November 14, 2019. Among other things, Dr. Aube recommended that both parties share equally all parenting responsibilities. She recommended an equal parenting time schedule, starting on what she described as a 2/2/3 basis, increasing to a 2/2/5/5 basis. Dr. Aube also recommended a further updated s. 211 report prior to the child entering school, which will be in September 2021. [ 4 ] This matter came back before me on February 7, 2020. The matter was scheduled for a half-day and both parties intended to call witnesses.

The time set aside for this matter was inadequate. With the agreement of the parties, we proceeded based only on submissions which themselves took the full allotted hearing time. There was no possibility that this matter could have been completed that day if witness evidence was called. [ 5 ] I issued my written decision on February 12, 2020. My Reasons for Judgment did not simply describe the order terms, leaving it to counsel to agree on the precise wording of the order.

Instead, I set out the specific wording of the order I was making. [ 6 ] One of the terms of the order as set out in my decision read: Commencing Monday June 1, 2020, and continuing on a two-week repeating

schedule until the parties agree otherwise or until the further order of this Court, the parenting time

schedule will be as follows:… [ 7 ] Rather than follow the wording I set out, counsel for P.B. proposed that the parenting time provision read as follows: Commencing Monday June 1, 2020, and continuing on a two-week repeating

schedule until the parties agree otherwise or until the further order of this Court, the parenting time

schedule shall be based on a 2/2/5/5

schedule , as follows:… [Emphasis added] [ 8 ] Counsel for L.C. did not agree to this draft because of the reference to the 2/2/5/5 schedule. [ 9 ] This matter now comes back before me on two applications: 1. P.B. asks that I reconsider my February 12, 2020 order. 2. L.C. asks to settle the terms of the February 12, 2020 order. [ 10 ] The specific terms of my decision which P.B. takes issue with are: 1. The parenting time schedule. 2. The sharing of the costs of the parenting coordinator, with P.B. paying 95% of the costs and L.C. paying 5% of the costs. 3.

The updated s. 211 report to be prepared by the Family Justice Counsellor. [ 11 ] I also understand that on March 18, 2020, P.B. filed for an appeal of my order, which has not been pursued. The Parenting Time

Schedule [ 12 ] In the report of November 14, 2019, Dr. Aube recommended what she referred to as a stage 1 parenting time

schedule starting January 2020. This was described as a 2/2/3 schedule. The parties did not agree with this recommendation as it involved too many exchanges of the child over the week. The parties live in different towns and travel by ferry is required to move between the towns. [ 13 ] Starting in October 2021, Dr. Aube recommended a stage 2 parenting time

schedule described as a 2/2/5/5 based on a 2-week model. Dr. Aube did not state a time for the exchange of the child. [ 14 ] At paragraph 16 of my February 12, 2020 Reasons for Judgment, I said I was prepared to move to a 2/2/5/5 schedule. I made an order that in week 1 of the new schedule, P.B. would have parenting time from 8:15 a.m. on the Monday until 4:00 p.m. on Tuesday. P.B. would then have parenting time at 8:15 a.m. on the Friday of that same week until 4:00 p.m. on the Tuesday of the following week.

For all other times during this 2-week period, L.C. would have parenting time. [ 15 ] P.B. takes issue with this schedule. According to my order, the start of parenting time in week 1 begins at 8:15 a.m. on the Monday. As a result, P.B. has the child overnight as follows: Week 1 – Monday overnight, Friday overnight, Saturday overnight

Week 2 – Sunday overnight, Monday overnight [ 16 ] P.B. argues that this

schedule is not a true 2/2/5/5 and does not give him equal parenting time because he has five overnight stays over a two-week period while L.C. has nine overnight stays. The Parenting Coordinator Costs [ 17 ] L.C. gave an estimate of her income at $1,000 a month, or $12,000 a year. P.B.’s income was about $213,000. Based on this information, I ordered that 95% of the costs of the parenting coordinator be paid by P.B. and 5% be paid by L.C. This was proportionate to their respective incomes. [ 18 ] The order went on to require L.C. to file financial information on or before June 30, 2020.

I ordered that the parenting coordinator could then re-allocate the costs for the parenting coordinator’s services as the parenting coordinator deemed appropriate. [ 19 ] P.B. says that L.C. did provide financial information in June 2020, and this was filed with the Court on July 31, 2020, the same day it was sworn. The Financial Statement set out L.C.’s income in 2019 as $67,353.36 based on both employment income and business income. The employment income was from Vancouver Coastal Health.

On page 1 of the Financial Statement, L.C. reports that she is no longer employed. [ 20 ] P.B.’s counsel advises that a hearing will be required to explore L.C.’s income and counsel suggested that the Court should be imputing income to L.C. Counsel went on to argue that the costs of the parenting coordinator should be shared equally as that would be an incentive for the parties to be more cooperative. [ 21 ] I understand that the parenting coordinator was also given L.C.’s financial information.

The parenting coordinator did not feel she was able to reallocate costs as that would require her to make a determination of L.C.’s income. Updated Sec. 211 Report [ 22 ] In my February 12, 2020 decision, I ordered that the Family Justice Counsellor prepare an updated s. 211 report. I did not order an updated report from Dr. Aube because I did not think L.C. had the means to pay for the report. [ 23 ] P.B. now argues that since L.C.’s 2019 income was $67,353.36, she is able to pay for an updated s. 211 report. Based on this, P.B. has invited me to change my order and have the updated report prepared by Dr. Aube.

P.B.’s application did not say how the costs would be shared. Jurisdiction to Reconsider an Order [ 24 ] I refer to the decision Bajwa v. Habib , 2020 BCCA 230 . At paragraph 48, the Court of Appeal stated: [48] Having said that, I am of the opinion that the trial judge did err in both “vacating” her judgment granting specific performance to Mr. Bajwa and in re-opening the trial.

Trial judges have a broad discretion to re-open a trial after judgment has been given, but it is a discretion that should be exercised rarely and only when the interests of justice clearly require prolonging the litigation in order to avoid a miscarriage of justice.

For example, the discretion to re-open may be properly exercised by a trial judge who is satisfied that his or her original judgment contains material errors that may be corrected by further submissions, or where evidence has been overlooked or misconstrued, or where the law has been misapplied, or where the reasons for judgment failed to address an argument advanced at trial: Grewal v. Grewal , 2016 BCCA 237 at para. 86 . [ 25 ] The Court went on to say: [51] Unfortunately, in adopting the “unfettered discretion” test from Clayton , the judge did not have drawn to her attention this Court’s judgment in Hansra v.

Hansra , 2017 BCCA 199 in which the term “unfettered” was expressly disapproved: [44] It is beyond doubt that a trial judge who has pronounced reasons for judgment has the ability, before a formal order has been entered, to reopen a matter. This power is often said to involve the exercise of an “unfettered discretion”. Although the word “unfettered” continues to be used in the context of reopening, the discretion to do so is in fact fettered, in the sense that, “as with any exercise of discretion, it must be exercised ‘judicially’, in a principled and consistent way ”: Fan v.

Chana , 2011 BCCA 516 at para. 61 , 345 D.L.R. (4th) 453 (per Levine J.A.). This is reflected, in particular, in decisions of this Court in which the discretion has been held to have been exercised improperly. In my view, the time has come to jettison the adjective “unfettered” which, by definition incorrectly describes the discretion . [Emphasis added.] [ 26 ] There is no doubt that in the case of an unentered order, I have a discretion to reconsider my decision. This discretion is not unfettered though.

The discretion “must be exercised rarely and only when the interests of justice clearly require prolonging the litigation in order to avoid a miscarriage of justice”, as stated at paragraph 48 of the decision Bajwa v. Habib . [ 27 ] I also refer to the decision Hellberg v. Netherclift , 2017 BCCA 363 , where the Court discussed reopening a trial to adduce fresh or new evidence: (

b) The Applications to Adduce Fresh and New Evidence [53] As noted earlier, by their informal applications each of the parties sought to adduce additional evidence on appeal. Some of the evidence sought to be adduced is properly characterized as “fresh” evidence, while some of it is “new” evidence. Fresh evidence is evidence that was in existence at the time of the trial: Struck v. Struck , 2003 BCCA 623 at para. 37 . New evidence is evidence of matters

that occurred after the order under appeal was made: Jens v. Jens, 2008 BCCA 392 at para. 24. [54] The test to be applied in determining whether to admit new or fresh evidence was set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759 at 775: 1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: McMartin v. The Queen, (SCC), [1964] S.C.R.484; 2.

The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; 3. The evidence must be credible in the sense that it is reasonably capable of belief; and 4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [55] In Stav v. Stav, 2012 BCCA 154 at para. 31, this Court noted that a “slightly more elastic” approach to the admissibility of freshevidence is sometimes appropriate in family law cases, particularly where the best interests of children are engaged.

The Court must,however, be cautious in considering the admission of either new or fresh evidence: Stav at para. 32. As was explained in Fotsch v.

Beginat para. 21, “to permit the admission on appeal of new factual circumstances that occur after the trial judgment would offend theprinciples of certainty and finality.” [56] While the consent of the parties to the admission of new evidence is a factor for this Court to consider, it is not determinative andthe ultimate decision about whether the interests of justice require the admission of the evidence rests with the Court: McCaffrey v.Paleolog, 2011 BCCA 378 at para. 61. [28] I turn now to consider whether there would be a miscarriage of justice if I do not reconsider my decision.

That leads me to thequestion of what is a “miscarriage of justice.” [29] In the decision R. v. Rautenberg, 2020 BCCA 168, the Court referred to a miscarriage of justice occurring if something wentwrong in the trial process itself: see paragraph 36. However, not all irregularities amount to a miscarriage of justice. At paragraph 39, theCourt of Appeal referred to the decision R. v. Davey, 2012 SCC 75, which said that the irregularity must be “severe enough to render thetrial unfair or to create the appearance of unfairness.” R. v.

Rautenberg is clear that there must be some form of prejudice. [30] In the decision Sidhu v. Sidhu, 2010 BCSC 1603, the Court cited with approval the decision of Mr. Justice Smith in AquilineResources Inc. et. al. v. Wilson et. al., 2005 BCSC 1461, stating: [29] I accept Smith J.’s

summary of this often used phrase. A “miscarriage of justice” has been defined as: • “[a] grossly unfair outcome in a judicial proceeding”: Black’s Law Dictionary, 8th ed., s.v. “miscarriage of justice”, cited withapproval in Aquiline Resources; • more than “unfairness as viewed by the party who perceives himself the victim of an unfair process”: Lin v. Tang (1997), (BC CA), 147 D.L.R. (4th) 577 at para. 61, 37 B.C.L.R. (3d) 325 (C.A.); • “more than just a finding that a different result might have occurred.

It involves a finding that, absent the reopening of the matter andthe reversal of the original determination, a fraud would be perpetrated or the giving of perjured evidence or the deliberate misleading ofthe Court would be countenanced: 1307347 Ontario Inc. v. 1243058 Ontario Inc., (26 January, 2001), Doc. 00-CV-197213CM, [2001]O.J. No. 257 (Ont. S.C.J.). [30] In addition, the Court in Lin observed, at para. 64, that such a miscarriage is almost always procedural: “The blemish must besuch as to make the judicial procedure not a judicial procedure at all”. [31] The parties have provided me with other caselaw.

Although I have reviewed them, I do not mention them in my decision. I havelisted those cases in an Appendix to my decision. [32] I turn now to consider whether there would be a miscarriage of justice if I do not reconsider my decision. [33] First, counsel for P.B. has not identified any procedural errors that led to an unfair decision. [34] Second, although I accepted that a parenting time

schedule based on a 2/2/5/5

schedule would be appropriate, I am not aware ofany legal definition for what a 2/2/5/5

schedule is. I was not given any authority that such a

schedule requires an equal number ofovernight stays. I also, specifically, did not refer to the 2/2/5/5 in my order because that term is not precise and serves only as a guide.The inclusion of that term into the actual court order served no purpose since my order set out precise times for exchanges. [35] In addition, the actual parenting time

schedule I ordered took into account the ferry schedule, which I referred to at paragraph 65of my October 2, 2019 decision. An order for equal parenting time does not mean each guardian is entitled to the exact same length oftime with the child or the same number of overnight visits. [36] Third, the evidence of L.C.’s 2019 income did not become available until June 2020, and was not available at the prior courtappearances. Counsel for P.B. says that L.C. will need to be cross-examined to explore her financial situation.

L.C.’s evidence is that shelost the job she held in 2019, and so does not earn the income referred to in her Financial Statement. My decision about the allocation ofthe parenting coordinator costs was not based on L.C.’s income from a job she no longer held. L.C.’s actual current income might still bea basis to change my order apportioning the costs of the parenting coordinator. It might even affect whether an updated s. 211 report

should be prepared by the Family Justice Counsellor. [ 37 ] Fourth, the timing is important. The relevant events are as follows: February 12, 2020 - Reasons for Judgment are issued. March 18, 2020 - Appeal filed. June 2020 - L.C.’s financial information was provided. January 28, 2021 - P.B. filed a Notice of Motion asking me to reconsider my decision. [ 38 ] There was a delay of about 11 months after my decision was issued before an application for reconsideration was filed. I find this to have been an inordinately long delay.

Where an applicant is alleging a miscarriage of justice, it is incumbent on the applicant to apply for a reconsideration without unreasonable delay. That was not the case here. [ 39 ] If I were to allow the trial to be re-opened, this would require L.C. to give new evidence about her finances.

The delay in resolving this matter would likely be months. [ 40 ] If I do not re-open the trial, P.B. still has the option of applying to vary my order based on a possible material change of circumstances, that being new evidence that was not available previously. [ 41 ] Given the above considerations, I have concluded that a miscarriage of justice will not result if I do not reconsider my decision. The delay in making the application was unreasonable. P.B. still has another option to seek an order to re-apportion the costs of the parenting coordinator or to ask for an order that Dr.

Aube prepare the updated s. 211 report. The reason for refusing to approve the draft of the February 12, 2020 order was not proper. A reference to a 2/2/5/5

schedule was neither required in the order nor did I mistakenly leave it out. [ 42 ] In light of the above, I dismiss the application of P.B. [ 43 ] For the reasons I have set out, I also allow the application of L.C. Pursuant to the Provincial Court (Family) Rules , R. 18(5), the order of February 12, 2020, is settled on the terms set out at paragraph 65 of the Reasons for Judgment filed February 12, 2020, without amendment. Ms.

Huang may submit the draft of the February 12, 2020 order in the form attached to L.C.’s Notice of Motion filed April 1, 2021, for my signature. [ 44 ] To avoid further delay, I order that pursuant to R. 18(4), the requirement for counsel to approve the form of the February 12, 2020 order as well as this order is dispensed with. [ 45 ] In

summary, my order is as follows: 1. The Notice of Motion of P.B. filed January 28, 2021, is dismissed. 2. The Notice of Motion of L.C. filed April 1, 2021, is granted. The order of February 12, 2021, is to be filed by Counsel for L.C. on the terms set out at paragraph 65 of the Reasons for Judgment dated February 12, 2020. 3. Pursuant to R. 18(4), the requirement for counsel to approve the form of the February 12, 2020 order as well as this order is dispensed with. [ 46 ] In order to expedite this matter, the Registry will prepare this order.

Next Steps [ 47 ] There remains some urgency in having a s. 211 report prepared, as both parties want the benefit of the report prior to the child attending school. P.B. claims that the report should be prepared privately, with L.C. sharing in the costs. L.C. says she cannot afford the costs. P.B.’s counsel says that L.C. will need to be cross-examined on her finances. [ 48 ] The new Provincial Court Family Rules come into effect May 17, 2021.

If either party applies on or after May 17, 2021, for an order regarding a s. 211 report, then the application should be made by filing an Application About Case Management Order. Any requests to change the parenting time

schedule requires the filing of an Application About a Family Law Matter. I urge the parties to file any applications as soon as possible if that is the intention. [ 49 ] Until there is a further court order or an agreement between the parties, my order of February 12, 2020, remains in effect in relation to the preparation of the s. 211 report. [ 50 ] I am no longer seized of this matter. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia

Appendix R. v. Roberts, 2004 BCCA 436 Dowell v. Hamper, 2019 BCSC 1592 Atkinson v. Atkinson, 2019 BCSC 1220 First Nation A. v. A.B., 2020 BCPC 279 Ludlow v. McMillan, 2011 BCSC 978 Hellberg v. Netherclift, 2017 BCCA 363 Clayton v. British American Securities Ltd., (BCCA)