R.L.L. v. I.D.M. Date:, 2014 BCPC 136

Citation: R.L.L. v. I.D.M. Date: 20140528 2014 BCPC 0136 File No: 8312 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.L.L. APPLICANT AND: I.D.M. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOHERTY Counsel for the Applicant: J. Nemeth

Counsel for the Respondent: B. Day Place of Hearing: Courtenay , B.C. Date of Hearing: May 21, 2014 Date of Judgment: May 28, 2014 [ 1 ] THE COURT: This is File 8312 out of the Courtenay registry. The applicant/mother, R.L.L., filed a notice of motion that seeks to set aside a final order made after a trial. [ 2 ] This is a very thick file. It has gone through the hands of many judges. It goes back several years. Many orders and applications have been made, culminating in a s. 211 report and an order that the case be fixed for trial for resolution. [ 3 ] At one point the matter was set for trial in November 2013.

At the trial confirmation hearing the applicant/mother complained about the s. 211 report being incomplete and full of bias. It is obvious the applicant did not agree with the s. 211 report's author and, specifically, her conclusion that the child, R (date of birth June 20, 2008) should be parented primarily by Dad. [ 4 ] One of Mom's complaints was that her children from a different relationship were not consulted.

These children are not part of this litigation or the parenting claim, and Dad did not pursue parenting time with them. [ 5 ] Normally when a report is challenged, evidence to the contrary is offered at trial, and the author of the report is subpoenaed for cross-examination. For some reason not apparent to me, the learned TCH judge ordered a s. 211 "update", and that is where the matter really got off the rails. First, updates are not available. The policy is to prepare an entirely new report.

That would have the effect of delaying resolution of this matter by something close to a year. [ 6 ] According to I.D.M., he was unable to attend the TCH. His counsel was on vacation, so an agent was retained simply to advise the court that Dad was ready for trial. I.D.M or his counsel did not anticipate that the TCH hearing judge would permit Mom to appear and make submissions to argue the inadequacy of the s. 211 report. I.D.M. was offered no opportunity to counter Mom's assertions that the report was flawed. [ 7 ] The matter came before me on November 27, 2013.

The previous order providing for a new "updated" 211 report was set aside, and the matter was sent to the judicial case manager to fix a trial date. [ 8 ] Mom was present on November 27 and agreed that because a new s. 211 report would cause inordinate delay and the matter, outstanding far too long, that she would have the report's author attend trial for cross-examination and that she, herself, would give evidence about the perceived flaws in the report. [ 9 ] It should be noted that the author of the s. 211 report did not appear as a witness subpoenaed by Mom for purposes of cross-examination on the trial date or, at least, I did not see her. [ 10 ] In support of her motion to set aside the final order, Mom filed an affidavit.

She acknowledged that she had been properly notified of the trial date. [ 11 ] She alleges that she was confused because there were other matters before the court, namely, a settlement conference and a civil matter.

She says she suffers from a brain injury and PTSD, both of which add challenges to her life. [ 12 ] Dad responds by saying that throughout this matter Mom has had the benefit of retained counsel or duty counsel; that the trial notice sent out by the JCM clearly relates to the family file; that the trial did not start until 10:30 that morning; that Mom is quite familiar with the court system, having been represented and representing herself, including the filing of applications in Provincial and Supreme Court Family Divisions, as well as Small Claims.

Also, while he does not say directly, he implies that Mom chooses to represent herself. She seems to have funds to travel to places such as Brazil and Costa Rica. I note today, for example, she has retained counsel. [ 13 ] The subject rule from the Provincial Court of British Columbia Family Rules is s. 20(4). That reads: A judge may change or cancel an order made in the absence of a person, or made when the person failed to file a reply, if (

a) there is a good reason for changing or cancelling the order, and (

b) that person applies by notice of motion to a judge under rule 12 within a reasonable time and attaches to the application an affidavit containing (

i) the reason the person did not file a reply or attend before the court when required, (ii) the reason for any delay if there has been delay in filing the application, and (iii) the facts that support the application. [ 14 ] On the morning of the trial, after waiting an hour for the appearance of the applicant/mother, the trial proceeded. The respondent/father took the stand, gave evidence over about 40 minutes. He was asked some questions by the Court and he filed exhibits. At the conclusion of the trial, the Court pronounced a final order.

[ 15 ] Counsel have not been able to provide any British Columbia case law that supports the proposition that this rule allows the Court to set aside a final order after trial. Counsel provided cases from various jurisdictions across the country, none of which were directly on point. [ 16 ] The Alberta legislature considered the issue and made the following rule under foundational rules, Family Law Rules, Division 1,

Part 12, setting aside varying and discharging judgments and orders, 9.5(1): On application, the Court may set aside, vary or discharge a judgment or an order, whether final or interlocutory, that was made (

a) without notice to one or more affected persons, or (

b) following a trial or hearing at which an affected person did not appear because of an accident or mistake or because of insufficient notice of the trial or hearing. [ 17 ] That rule, if it applied in British Columbia, would resolve the problem. It is about as broad a solution as can be found. No such rule exists in British Columbia. The applicant/mother urges then the broadest

interpretation of "good reason" found in our rules. [ 18 ] First, there is no suggestion that in our rule that it should be applicable to a final order after trial in which evidence is given and exhibits filed. [ 19 ] Presumably, if the British Columbia legislature wished to give this court the ability to set aside a final order, it would have provided a broad-range rule equivalent to the Alberta rule in which a final order is referred to specifically. Aside from the question of jurisdiction, there is the

interpretation of ‘good reason.’ [ 20 ] The applicant/mother makes herself out to be a sympathetic figure, but she had no trouble obtaining counsel in the past or for this application. She had no trouble appearing on her own and arguing her cause, even persuading a fellow judge to order a new 211 report because the one filed was unfavourable to her. She had no trouble filing matters in this court or the other trial court.

And she received proper notice from the judicial case manager. [ 21 ] She did not appear at trial, and it is not clear to me that even if she had appeared she was ready to go to trial, since the 211 author was not in attendance under subpoena. [ 22 ] Against the sympathy one might have for the applicant and whatever consideration one ought to have for fair, large, and liberal construction of enactments as provided by the

Interpretation Act , there is this: There ought to be some finality in these cases. That worthy goal is especially true where the future of a child is concerned. Unless there is a dramatic change in circumstances that warrants revisiting a final order in a child case, the Court, the parents, the child, and society in general will all benefit from the certainty a final order provides. [ 23 ] As it happens, the final order in this case happily coincides with the recommendation made in the 211 report.

In this specific case finality is a worthy objective, as it is from a public policy point of view generally. [ 24 ] The motion is dismissed. [ 25 ] Thank you, counsel for your efforts in this matter. It was much appreciated. (REASONS CONCLUDED)