S.T.M. v. C.G.H, 2022 BCPC 142

Citation: S.T.M. v. C.G.H 2022 BCPC 142 Date: 20220323 File No: [Omitted] Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.T.M. APPLICANT AND: C.G.H. RESPONDENT ORAL RULING OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Applicant: G. Whidden Counsel for the Respondent: F. MacLean and A. Sadovska Place of Hearing: Prince George , B.C. Dates of Hearing: February 16, March 23, 2022 Date of Judgment: March 23, 2022

[ 1 ] THE COURT: This is my decision with regard to recent events on the S.T.M. versus C.G.H. file, Court File Number [omitted for publication]. I am giving oral reasons and I reserve the right to edit for clarity, grammar and punctuation if a transcript is ordered by either party. [ 2 ] S.T.M. and C.G.H. have been involved in lengthy and acrimonious litigation on a variety of issues, but particularly as it applies to the past history of the care of their daughter, B.H., and what the future of her care and the parenting time that each will enjoy with her should look like.

This trial has lasted, by my count, 16 days, on the issues, in part, of parenting responsibilities, parenting time, B.H.'s involvement with various experts, and health resources arising from her challenges as a previously undiagnosed, but relatively recently diagnosed person living within the autism spectrum disorder. She is now a young teen. [ 3 ] The issues that came before me that I am dealing with today and on February the 16th have to do with new information that T.C., C.G.H.’s partner, says she obtained in early February 2022 from third parties concerning S.T.M.’s personal life.

In particular, her relationship and the nature of that relationship with a J.L. On February 16, C.G.H ‘s counsel presented to the Court an affidavit of T.C. in which she related some conversations she had with third parties, particularly, K.S., who is a relative of a friend of T.C.’s. K.S. is also a friend of J.L. Based on what T.C. says K.S. told her about J.L. and his relationship with S.T.M., she filed an affidavit outlining concerns that perhaps S.T.M. was involved in a more than platonic relationship with J.L. and that if that information was shared with Mr.

H, who is S.T.M.’s partner, the stability of that household could be jeopardized. [ 4 ] S.T.M. did spend considerable time in the trial, both in her evidence and in her counsel's submissions, advising the Court that B.H. needed consistency and routine and that the household she shares with Mr. H., his two sons, and B.H., provides that.

So, it is not too big a leap of faith to suggest that if that circumstance was to be disrupted that could possibly disrupt B.H.'s stability and, hence, would not be in her best interests. [ 5 ] On February 16 after receiving the affidavit, but not yet having it filed - so it is, in fact, not evidence before the Court at this point so far as the trial proper is concerned - Mr. Whidden on behalf of S.T.M. sought time to take instructions and that time was granted and a new date was scheduled, that being today. [ 6 ] In that interregnum, Mr. Whidden prepared four affidavits.

Those would be from N.S. and K.S., K.S. being the person who had conversations with T.C.; J.L., the person who is mentioned in T.C.’s affidavit as potentially being S.T.M.’s romantic partner; and S.T.M. [ 7 ] All of those affidavits were presented to the Court today and I have read them, but they are not yet stamped, either, and not yet evidence before the Court on the trial. All of them refute the substance of T.C.’s affidavit. Some of them suggest that T.C. misinterpreted what she had been told.

Some of them outright allege that T.C., in presenting her affidavit evidence, was attempting to mislead the Court by providing not incorrect, but false information. Counsel have made numerous submissions to me today on a variety of issues and I have quizzed counsel at length about whether or not any of this evidence should be admitted given that this trial has lasted the better part of two years. [ 8 ] Mr. MacLean now says, having read the affidavits presented by Mr.

Whidden, he is instructed to no longer pursue the admission of T.C.’s affidavit and, hence, since he is not applying to reopen C.G.H.’s case, there is no need for the court to consider T.C.’s affidavit or the affidavit of the other parties. Mr. MacLean says that he accepts, as a general proposition, but not absolute, that affidavits from the actual actors, in other words, first-person affidavits, are generally the preferred evidence as compared to affidavits relying on hearsay.

Although T.C. stands by what she says she was told, having looked at the other affidavits, he no longer wishes to pursue the reopening of C.G.H.’s case. [ 9 ] Mr.

Whidden, on behalf of S.T.M., takes the position that given that C.G.H through his counsel has presented an affidavit which now other affiants say is not only incorrect, but false, it should be considered by the Court as part of the analysis on the trial proper regarding the credibility of T.C. [ 10 ] In any case involving decisions concerning children the primary witnesses tend to be the children's parents, It is clear in this case that the evidence of other third parties is relevant, particularly that of the partners of each of S.T.M. and C.G.H, because they have contact with B.H. within the circumstances of their own homes.

So, T.C. is not a minor witness because, regardless of the outcome of the case, she is going to have some form of regularized contact with B.H. It is not as if T.C. is a grandmother who B.H. sees once or twice a year who may have got some bad information about S.T.M.’s circumstances. She is a supporting player. [ 11 ] I advised counsel that, whether or not the affidavits would be admitted and filed to become part of the trial process, I would be treating what occurred on February 16 and today with regard to that issue effectively as a voir dire or a trial within a trial.

Depending on the decision in the voir dire , there may be other issues that have to be addressed. [ 12 ] In any circumstance involving any orders concerning a child, s. 37 of the Family Law Act makes it crystal clear that in making an order respecting guardianship, parenting arrangements, or contact with a child, the parties and the Court must consider the best interests of the child only. Effectively, what has happened is the roles are reversed here in the sense that now Mr.

Whidden is asking the Court to admit the evidence that is presently before it in the voir dire , and asking the Court to consider the case reopened. Then, says Mr. Whidden, once that is done and the affidavits admitted, that should be the end of it because the affidavits of the four affiants he has presented almost completely contradict the evidence of T.C. [ 13 ] Mr.

MacLean, on behalf of C.G.H, responds we do not want to pursue the matter any further, but if the Court decides that the affidavits should go in, they are no different than any other evidence presented by a witness and those witnesses should be subject to cross-examination. [ 14 ] As I pointed out to counsel, I am treating this situation by analogy, to the test to be applied when a party wishes to present fresh

evidence to the Court in an appeal, and that is governed by the case of Palmer v. The Queen , [1980] 8 S.C.R. 759 . Having said that, the test here, is not as onerous as it would be on an appeal because this case has not yet been decided, I have not yet rendered a decision. I remain seized of the matter until I do, and it is certainly different, than what can or cannot occur in the way of fresh evidence after a decision is granted, as was described in Mohajeriko v. Gandomi , 2010 BCSC 60 . [ 15 ] The four-part test described in Palmer v.

The Queen says that evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal cases as in civil cases. On point number one, this evidence could not have been presented at the trial because it arose after all the evidence was presented and the written submissions were made. [ 16 ] The fact that the principle is not applied as strictly in criminal cases as in civil cases, I think has to be nuanced by such cases as Toronto (City) v.

CUPE where the Ontario Court of Appeal says that, "Finality carries less weight in cases involving child support and custody orders." [ 17 ] That is not universally accepted, because in Van de Perre v. Edwards , 2001 SCC 60 , at paragraph 13 , - now, I should say, just to not suggest that I am coming up with cases on my own, I am quoting an

article by Ms. Georgialee Lang found in the Issue 172, Spring 2022, of the Verdict magazine. This extensive

article on new evidence in family law appeals has some application here. She goes on to quote from Van de Perre v. Edwards , where the Supreme Court of Canada said finality is: … particularly important for the parties and children involved in custodial disputes. … Finality is a significant consideration in child custody cases, maybe more so than in support cases … [ 18 ] That, of course, has been commented on in other cases at the appellate level and, in particular, in Re Genereux and Catholic Children's Aid Society and in Luney v.

Luney , a decision of our Court of Appeal at 2007 BCCA 567 where the Court of Appeal said, evidence may be admitted: … in the interests of justice … otherwise the Court’s decision may be regarded as resting on a misapprehension of the evidence. [ 19 ] So what is the Court to do in these circumstances? Both parties have made mention in their submissions today that they want to get this matter concluded and a decision rendered.

If this had been a two or even a four-day trial on discrete issues, I would feel additional urgency in getting the matter concluded, but that is not the case here. [ 20 ] The parties have, in meticulous and minute detail, presented the Court with voluminous evidence of their interactions, the involvement of third party health resources, the involvement of experts who have differing views on how B.H.'s personal challenges should be addressed, the involvement of experts as to how the parties should be dealing with each other, and the evidence that, since almost the beginning of their separation, there has been a general stated consensus that C.G.H’s time with B.H. should become equal to S.T.M.’s time with B.H.

The difference in the two perspectives being under what circumstances that should occur and under what timelines. [ 21 ] I have given regard to the parties' wish to have this matter resolved sooner rather than later by getting this matter wrapped up today. If I decide I am not going to admit any of the affidavits, I reassure the parties I am quite capable of disabusing my mind of anything that is raised in them.

If I decide that the affidavits should be admitted, clearly there has to be a discussion as to how that new evidence will be treated and under what circumstances will the Court permit further evidence to be called. [ 22 ] I go back to s. 37 and remind myself that I am to take steps in this proceeding that I conclude are in B.H.’s best interests, because I am being asked to make an order respecting parenting arrangements between the parties and B.H.

When I give consideration to that guiding principle and what has occurred in the last six weeks or so, from February 16 until now, and the various affidavits that have been presented to the Court for consideration, I have determined that all five affidavits should be stamped and admitted into evidence by the Court. With the exception, I have some comments to make about S.T.M.’s affidavit and the relevance of some of it in relation to the present matters before the Court.

Not that they are not relevant in general, but regarding the present matters before the Court, and whether or not I should be considering them going forward. [ 23 ] Having now decided that the five affidavits will be admitted, I direct that they be date-stamped with today's date starting with T.C.‘s and following in response, J.L.’s, K.S’s, N.S.’s and finally S.T.M.'s. (REASONS FOR JUDGMENT CONCLUDED)