B. M. v. P. M., 2020 BCPC 248

Citation: B. M. v. P. M. 2020 BCPC 248 Date: 20201118 File No: 19133 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B. M. APPLICANT AND: P. M. RESPONDENT ORAL RULING OF THE HONOURABLE JUDGE J. GUILD

Counsel for the Applicant: B. Veenstra, via telephone Counsel for the Respondent: A. Brunet, via telephone Place of Hearing: Cranbrook, B.C. Dates of Hearing: November 16, 17, 2020 Date of Judgment: November 18, 2020 [ 1 ] P. M. (Mr. M.) brought an application by way of Notice of Motion (NOM), filed on March 19, 2020, seeking an order that a transcript from a Family Case Conference (FCC) held in 2009 be prepared and released to the parties and their solicitors.

The applicant wanted to obtain part of the case conference discussions that he believes will show that there was an agreement regarding how the parties’ children’s residence would be claimed to optimize tax repercussions. Those discussions were said to be relevant to an appeal filed in respect of a British Columbia Provincial Court (BCPC) decision in December 2019 regarding spousal support. B. M. (Mrs.

M.) opposed the NOM on grounds that FCC discussions were privileged or made without prejudice (WOP), as well as disputing that there was any such agreement in the case conference. [ 2 ] Due to the COVID pandemic and repercussions from related health restrictions, a date for the hearing of the NOM was not set until September 16, 2020, when the hearing was scheduled for November 16, 2020. The appeal, originally scheduled to be heard in May 2020, was also adjourned due to the pandemic and is now scheduled for the assize in February of 2021. [ 3 ] This application gives rise to a number of issues.

Which Legislation Applies? [ 4 ] The FCC took place when the Family Relations Act [1] ( FRA ) was the governing legislation. The Family Law Act [2] ( FLA ) is operative now. The parties appeared to assume that the FLA and the current Provincial Court (Family) Rules [3] govern. That is not clear to me and could be the subject of argument. For simplicity, I will proceed on the basis that the current legislation applies as the parties assumed.

Nature of Application and Authority to Make Order [ 5 ] Although the parties proceed on the basis that the application was properly made pursuant to a Notice of Motion, I have concerns about it. [ 6 ] Rule 12 of the Provincial Court (Family) Rules permits an application by Notice of Motion for various specific orders, and “ (

h) any other order, direction or review that, under these rules, is to be sought by a notice of motion.” Accordingly, one must look to other rules that permit or prescribe the NOM for an application as a source for the application. [ 7 ] Pursuant to Rule 5(8) (e), a judge may “ make any order or give any directions that the judge considers appropriate” , provided that the judge is satisfied that urgent and exceptional circumstances exist. However, Rule 5(1) states that Rule 5 only applies to proceedings begun by an application under Rule 2 in a family justice registry.

There is no such application and Cranbrook is not a “family justice registry”. [4] Rule 5 cannot be a basis for making the order sought. [ 8 ] The only other possible rule is Rule 20(6), which mandates use of a NOM to seek production of a third-party record:

(6) On application by notice of motion to a judge under rule 12 , the judge may order a person who possesses or controls a record that is relevant to the proceedings and on whom notice has been served in accordance with rule 12 (1) (

b) to produce the record for inspection and copying on the date, at the time and place and in the manner the judge thinks is fair. [ 9 ] First, the record sought – a transcript – does not exist. Apparently, there is a recording of the FCC, so that recording could be produced and copied. Presumably, a transcript could be made from that copy. Second, although the registry may possess the record, there was no evidence that any person was served as required, and no application was made to dispense with that requirement pursuant to Rule 20(2) (b).

However, that could readily be corrected. [ 10 ] What is most important is the requirement that the record be “relevant to the proceedings”. Although “proceedings” is not defined, they would have to be proceedings as contemplated in the rules. Rule 1(1) [5] states:

(1) The purpose of these rules is to allow people to obtain just, speedy, inexpensive and simple resolution of matters arising under the Family Law Act and certain matters under the Family Maintenance Enforcement Act . [ 11 ] Since appeals are part of the FLA , it may be arguable that an appeal could be part of the “proceedings”, but that would not be the usual use of the term, nor in my view is it accurate. The regulations are entitled “ Provincial Court (Family) Rules ”.

They were made pursuant to the Court Rules Act . [6] That Act permits the Lieutenant Governor in Council to “make rules that the Lieutenant Governor in Council considers necessary or advisable governing the conduct of proceedings in the Court of Appeal, the Supreme Court and the Provincial Court.” [7] That includes the practice and procedure in each court [8] and rules for disclosure in “proceedings under the Family Law Act ”. [9] [ 12 ] There are regulations governing the conduct of proceedings in each of the three levels of court. [10] That means the Provincial Court (Family) Rules are applicable only to proceedings in the Provincial Court.

The word “proceedings” would have to relate to matters over which the Provincial Court has jurisdiction. This Court does not have jurisdiction over the appeal. [ 13 ] Despite arguments to the contrary, I am not satisfied this Court has jurisdiction or that the NOM is available for this application. However, I will go on to consider the merits in the event that I am wrong.

Nature of FCC [ 14 ] The applicant likened a Family Case Conference to a Judicial Case Conference [11] (JCC) and Case Planning Conference [12] (CPC) in British Columbia Supreme Court (BCSC). But they each have a number of features that an FCC does not, as well as different purposes. A CPC is: … intended to be an informal process during which the parties are encouraged to engage the presiding judge or master in a frank and candid discussion of how best to manage a lawsuit to achieve efficiency in its resolution… [13] [ 15 ] The purposes of a JCC are: (

a) identifying the issues that are in dispute and those that are not in dispute; (

b) exploring ways in which the issues in dispute may be resolved other than by way of trial; (

c) ensuring disclosure of the relevant evidence; (

d) setting the date for a settlement conference, if appropriate, and giving directions for the conduct of the settlement conference; (

e) if appropriate, setting a timetable for the steps to be taken in the case before it comes to trial; (

f) considering any other matters that may aid in the resolution of the proceeding. [14] [ 16 ] “The primary purpose of a FCC is to reach a settlement of any disputed parenting issues”. [15] Mr. Boyd, a well-known and highly respected lawyer and author, also notes another significant difference: the judge at an FCC can make orders without the consent of a party . [ 17 ] As to orders that can be made, a master or judge at a JCC under Rule 7-1(15) can make 19 different orders. At a CPC, a judge or master can make 23 different orders that predominantly relate to procedure.

There are 14 orders that can be made at an FCC. [ 18 ] More precisely for the purposes of this application, a significant point is that for JCCs and CPCs, the rules require that the proceedings be recorded but no part of the recording may be made available to or used by anyone without a court order. [16] There is no similar provision with respect to FCCs either under the FRA or currently under the FLA . It does not have to be recorded and there is no express use limitation regarding any such recording.

Accordingly, there may not be a need for an application. [ 19 ] The parties proceeded on the basis that because the purpose of an FCC is to resolve matters without a trial and usually by consent, what was said would not be admissible at a trial because discussions would have been on a without prejudice basis. As noted, a judge could make orders at an FCC without consent. And discussions are not always without prejudice.

Whether the FCC in issue was WOP is not certain, but again I will assume they were for the reasons relied upon by the parties, which I understood to be settlement negotiation privilege and/or the generally without prejudice nature of settlement negotiations. [17] Legal Test [ 20 ] Given the absence of guidance in legislation and regulations to obtain a transcript, the applicant relied on the legal tests used where JCC/CPC transcripts were in issue.

In one case, ordering transcripts was said to require compelling grounds. [18] With respect to settlement privilege, the applicant must show on balance that a competing public interest outweighs the interest in confidential communications which promote settlement. [19] In Berry , the court set out a list of exceptions to the general rule that settlement negotiations were privileged; one of those was where the agreement itself was in issue and another where the contents of the communication form part of the legal claim, [20] both of which might be likened to the circumstances that form the basis of this NOM.

In an Ontario case on this issue where the legislation was similar, the test was said to be whether there was a legitimate need and whether the probative value outweighed the prejudicial effect. [21] [ 21 ] There is no definitive test under the Provincial Court (Family) Rules , nor perhaps with respect to a JCC. In Morales v. Puri, [22] a transcript of the JCC was ordered in the Supreme Court for the purposes of the appeal. The respondent to the NOM, Mrs.

M., provided a case where the court held that transcripts of a JCC should not be produced where the purpose was to attack credibility, but no test was articulated. [23] In other instances, the issue has been dealt with by the appeal court. [ 22 ] In Vetrici v. Vetrici, [24] the appeal court dealt with a number of issues relating to the appeal, including whether a transcript of a JCC should be ordered for the appeal. The court determined it was not necessary for the appeal and declined to make the order. In Lowry v. Kushnir , , [25] the reasons for the eventual order made at the case conference were in issue.

The court hearing the appeal requested that the case conference judge order the transcript for the purposes of the appeal. In other words, the court in that case considered that the transcript was required for the appeal. [ 23 ] In Morey v. Morey , the issue was very similar to the case at bar and a transcript was ordered: [12] Initially, on June 5, 2014, Mr. Morey brought an application to vary the order for spousal support by suspending or terminating his obligation to pay. The basis for his application was that there was a change in circumstances in that Ms.

Morey was living in a common- law relationship with Mr. Mercer. Mr. Morey asserted that was a change in circumstances since the order was made, as the relationship was not disclosed at the JCC. Ms. Fudge asserted that it was disclosed at the JCC and accordingly, leave to order a transcript of the JCC proceedings was granted. A review of the transcript revealed that Ms. Fudge's relationship with Mr. Mercer had been disclosed and discussed at the Judicial Case Conference. As a result, Mr.

Morey abandoned his application to vary on May 15, 2015. [26] [ 24 ] Although the case went to a further appeal, the correctness of the conclusion regarding the transcript was not challenged; in fact, the transcript was apparently essential to the appeals. [27] The only point that is clear from a review of the cases and principles is that

there is always a balancing of factors required in determining whether a transcript of a case conference should be ordered. [ 25 ] In this case, even if I am able to determine the appropriate test and order the transcripts, their admissibility as fresh evidence on appeal will be an issue.

That indicates the issues are linked, and the appellate court is in a better position to make the appropriate balancing calculus as to the need for the transcript for the purposes of the appeal, bearing in mind whether or not it might also be admissible as new evidence. [ 26 ] Assuming, as do the parties, that the communications are without prejudice and as a general rule inadmissible at any hearing, I would have to balance various factors. If the records are important to have a fair appeal hearing, the general rule might have to give way.

But at this point I would be speculating that they would be admissible on appeal. If they are not, then the privacy of those communications will have been lost and the sanctity of the presumption violated for no good reason. I also consider, what if the hoped for evidence is not there? The mischief cannot be undone. [ 27 ] There may be solutions to deal with that problem – I could review the transcripts before releasing them to the parties, and transcripts could be edited so that only those parts which may be supportive of the argument, if any, are released to the parties.

That assumes that those parts can be separated and the excerpts still remain an accurate reflection of the alleged quid pro quo . Mrs. M. doubts that could be done and argues the whole transcript would have to be released. I could also grant permission to listen to the recording, but not permit any record to be made of it, to see if there is something of substance to support the applicant’s position. However, it would not be surprising if there was a clear-cut and simple statement of a quid pro quo ; rather, the discussions that led to the order might be nuanced and subject to

interpretation and much argument – which of course would all be additional issues before me and on appeal. [ 28 ] In my view, the determining factor is that each court has control over the proceedings before it and an awareness of and ability to adjudicate on the issues raised. In this case, that court is the appeal court – BCSC. I do not have that authority or knowledge. I am sympathetic that the matter was argued before me and expenses incurred by both parties seemingly for nought.

This application was made in this Court apparently because of more limited time in BCSC, and the effect of this ruling is that the BCSC hearing on its merits will be delayed further, likely to August 2021 according to counsel. That is most unfortunate, but it is the court that has all of the context and circumstances before it that is in the best position to determine the balance to be made amongst the competing factors and maintain as far as possible the WOP nature of the communications.

Ruling [ 29 ] The application is dismissed without prejudice and referred to the Supreme Court of British Columbia to be determined as an issue on the appeal. ____________________________ The Honourable Judge J.

Guild Provincial Court of British Columbia [1] Family Relations Act , RSBC 1996, c 128 [2] Family Law Act , SBC 2011, c 25 [3] BC Reg 417/98 [4] Rule 1(2): "family justice registry" means the Kelowna, Nanaimo, Surrey or Vancouver (Robson Square) registry [5] Provincial Court (Family) Rules [6] RSBC 1996, c 80 [7] S. 1(1) [8] S. 1(2)(a) [9] S. 4 [10] For example, Supreme Court Family Rules, BC Reg 169/2009 ; Court of Appeal Rules, BC Reg 297/2001 , though the enabling Act is the Court of Appeal Act , RSBC 1996, c 77 . [11] Rule 7-1, Supreme Court Family Rules [12] Rule 5-1, Supreme Court Civil Rules, BC Reg 168/2009 [13] British Columbia (Director of Civil Forfeiture) v. 552888 BC Ltd. , 2018 BCSC 1689 , at para. 8 [14] S.L.B. v.

G.S.B. , 2008 BCSC 1557 ; Rule 60 E of the Rules of Court, in effect at the time

[15] John-Paul E Boyd, QC, JP Boyd on Family Law, Courthouse Libraries BC, 2019 CanLIIDocs 3727 at p. 145; Rule 7(1) Provincial Court (Family) Rules [16] JCC, Rule 7-1(19); CPC, Rule 5-2(7) [17] Berry v. Cypost (No. 1), 2003 BCSC 1827, at para. 7 and 14 [18] Parti v. Pokorny, 2011 BCSC 955, at para. 49 [19] Nguyen v. Dang, 2017 BCSC 1409, at para. 21 [20] Berry, at para. 19 [21] Halton Children’s Aid Society v. J.T., 2019 ONCJ 39, citing Children’s Aid Society of Niagara Region v. N.(R.), 2004 CarswellOnt1638 [22] 2016 BCCA 216 [23] Shuker Czerwinski v. Czerwinski, 2014 BCSC 432 [24] 2014 BCCA 230 [25] (ON SC) [26] 2015 BCSC 2340, at para. 12 [27] Morey v. Morey, 2015 BCSC 2340