A.W. v. J.M., 2020 BCPC 108

Citation: A.W. v. J.M. 2020 BCPC 108 Date: 20200501 File No: F-9773 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Court IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.W. APPLICANT AND: J.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Applicant: S. Bunn Appearing by Teleconference Counsel for the Respondent: D. Chiasson Appearing by Teleconference Place of Hearing: North Vancouver , B.C. Dates of Hearing: April 6. 14, 22, 28, 2020

Date of Judgment: May 1, 2020 A Corrigendum was released by the Court on May 27, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT : J. A. M. (J.) is the seven-year-old daughter of A. W. (Ms. W.) and J. M. (Mr. M). J. will be eight on [omitted for publication]. Both her parents have made applications for orders including parenting time (each seeking primary residence), parenting responsibilities and protection orders. After hearing three-and-a-half days of testimony, the court raised for the parties' consideration the appointment of counsel for J.

Mr. M. consents to the appointment of counsel. Ms. W. takes no issue with the order and describes it as a good solution. [ 2 ]

Section 203 of the Family Law Act permits the court at any time to appoint a lawyer to represent the interests of a child in a proceeding under the Family Law 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) If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party alone to pay, the lawyer's fees and disbursements. [ 3 ] I will first deal with s. 203(1)(b), that is, is the appointment of counsel necessary to protect the best interests of J.? My comments in no way are meant to be a criticism of the parties, and certainly not of counsel, and by no means are meant to be disrespectful. The wording of the

section has legal significance and I do not want the parties to be concerned that that legal significance somehow is criticism of either of them. It is not. The words in the section, as I say, carry a legal significance which I am required to interpret. [ 4 ] So is the appointment of counsel necessary to protect J.'s best interests? I have concluded it is. The reason for that is, after three-and-a-half days of testimony, the testimony that I have heard, in my view, was not sufficient to comply with s. 37(2)(

b) of the Family Law Act , that being the consideration of J.'s views. Both parents agree that it is appropriate for the court to consider J.'s views. I have heard from a number of the adults in J.'s life and I have concluded that the testimony, despite the best efforts of the adults, was not sufficient to provide J.'s views. It is my judgment that there was actually an absence of evidence respecting J.’s views.

I have concluded that because of the absence of evidence, the appointment of counsel is necessary to protect the best interests of J. [ 5 ] With respect to the degree of conflict, subsection (a), as I have just said, requires the degree of conflict between the parties to be so severe that it significantly impairs the capacity of the parties to act in the best interests of the child. There is no question that the degree of conflict in this case is significant. There have been allegations of family violence made by each parent against the other. Mr. M. is charged with the assault of Ms.

W. resulting from an incident in mid-December of 2019. [ 6 ] Again, this is not a criticism and no disrespect is meant, but after three-and-a-half days of testimony, in my view, there was not enough focus on J. While I appreciate that there are applications for a protection orders and, understandably, that is going to raise issues of conflict, I think it is fair to say that was the focus of the testimony. [ 7 ] The first of a few examples that illustrate, in my view, that the degree of conflict is so severe that it significantly impacts the parties' capacity to act in the best interests of J. is child support.

In this case, Mr. M. is the payor. To his credit, he recognizes his obligation and has been paying child support. In this day and age, the payment of child support can be as easy as a click of the mouse. Regrettably, that is not occurring and the mechanism that the parties have put in place for the payment of child support is causing a significant delay in receipt. I think it is because of how severe the conflict is. It has significantly impacted the capacity of the parties to put in place a mechanism that ensures J. receives her child support in a timely fashion.

Again, not a criticism of the parties, but a reality of the degree of conflict and its impact on the parties to act in J.'s best interest. [ 8 ] A second example is the parenting time and contact for J. with her dad and her paternal family members. To Ms. W.'s credit, based on what I have heard so far, she supports parenting time and contact, but the conflict has been such that it has impaired the capacity of the parties to ensure it occurs, such that J. has not had contact or parenting time with Mr. M. or his family in 2020.

Again, not because there was opposition, as I understand it, but because the conflict impaired the ability of J.'s parents to make it happen. [ 9 ] There are other examples. Section 37(2)(

h) and (

i) of The Family Law Act refer to family violence and whether the family violence indicates that the person may be impaired in his or her ability to care for the child and meet the child's needs. Reminding myself that we have concluded the evidence portion, but I have not heard submissions yet, it is not clear to me that the testimony was focused on family violence that might impair a parent’s ability to care for J.

I think there is an issue about whether the court was told about family violence because the parties wanted the court to hear about the conflict rather than the court hearing about family violence that was restricted to whether it impaired the ability of a person to care for and meet the child's needs. [ 10 ] With respect to s. 37(2)(i), the appropriateness of arrangements that would require the child's guardians to cooperate on issues affecting the child, the court was left with the question that counsel will have to address in submissions as follows, after hearing all the testimony about family violence, can there possibly be any appropriate arrangement?

I think the testimony was not quite as focused as it could have been with respect to that factor. [ 11 ] With respect to s. 37(2)(e), J.'s need for stability, I simply pose the question whether the testimony was intended to destabilize J.'s primary caregiver? [ 12 ] So, as I say, I have not made any findings. This is all in relation to issues that, in my view, support the making of the order

appointing counsel. When I consider s. 37 of The Family Law Act for the making of an order for parenting arrangements, I will have had the benefit of counsels’ submissions.

I think it is also important to recognize that -- and I commend the parents and their counsel for this, that by essentially consenting to this order, the parties are acknowledging the applicability of s. 203, but in no way do I take that acknowledgment as in any way prejudicing each party's position with respect to the s. 37 considerations. [ 13 ] By the parents essentially agreeing to this, they are saying to the court 1) that they were unable to present the testimony the court needed, 2) they agree that was because of the conflict and the effect of the conflict on them, and 3) that the appointment of counsel is necessary to protect J.'s interests.

That does not diminish the conflict or suggest that because they agreed, the conflict is not so severe. What it says to the court is both parents have made an acknowledgment which they should be commended for and, by doing so, they are assisting the court in coming to its determination of what is in J.'s best interests which, with respect to the issues of guardianship and parenting time, is the sole and fundamental consideration and the purpose of the court -- to make orders that are in the best interests of J. only.

I thank both the parents and their counsel for the way they have addressed and dealt with this portion of the case. [ 14 ] Accordingly, pursuant to s. 203 of The Family Law Act a lawyer from the Child and Youth Legal Centre may represent J. The form of the s. 203 order is attached to this decision. (REASONS CONCLUDED) IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Form 26 (Rule 18 (3.1)(c)) Court File Number: 9773 Court Location: North Vancouver Provincial Court Between: A.M.W., Applicant And: J.M., Respondent Before The Honourable Judge S.

Merrick on May 1, 2020 This matter coming for hearing at North Vancouver Provincial Court 200 East 23 Street North Vancouver, British Columbia V7L4R4 on may 1, 2020 Persons appearing: A. M. W. Lawyer: Bunn, S J. M. Lawyer: Chiasson, D ORDER This Court orders that: 1. Upon this matter coming on for hearing and at the conclusion of the testimony this court has determined that pursuant to

section 203 of the Family Law Act a lawyer from the Child and Youth Legal Centre may act as the counsel for J. A. M., born May xx , xxxx (herein thereafter referred to as the “Child”) for the purpose of assisting the court in determining, where the Child resides, parenting time, contact with the other important adults in her life, her present living situation, what she experienced when her parents were residing together, and such other matters as counsel and the Child determines. Page 1 of 2 Original: North Vancouver Provincial Court 2.

Counsel for the Child shall have full power to act for the said Child as though they were a party to these proceedings and, without limiting the generality of the foregoing. Counsel for the Child is authorized to:

a) Receive copies of all professional reports and all records relating to the Child;

b) Receive copies of correspondence between counsel (or the parties, if unrepresented) in relation to the proceedings;

c) Appeal and participate in this proceeding, including the right to examine and cross-examine witnesses and the right to have witnesses recalled for cross examination, call evidence and make submission to the Court, such submissions to include positions advanced on behalf of the Child;

d) Talk to and meet with the Child alone and confidentially or with the others at any location without prior notice to the parents, including but not limited to the Child’s school;

e) Talk to and meet with the Child alone and confidentially, with reasonable prior notice to the parents, at the residence of either parent;

f) Communicate directly with the parents of the Child for the purposes of scheduling any matters relating to the Child;

g) Apply to be removed as the legal representative of the Child; and

h) Take other steps as authorized by the Court. 3. All third parties involved with the Child and her parents, including but not limited to the Child’s teachers and school authorities, family and child counsellors and assessors, mediators, church personnel, visit supervisors, medical service providers, psychologists and social workers and child welfare authorities are hereby authorized to release any and all information about the Child to counsel for the Child without the consent of the parents and/or guardians. 4. Counsel for the Child shall be permitted, pursuant to s. 202 of the family Law Act to provide a

summary to the Honourable Court of the information acquired in the course of performing his or her duties and by doing so Counsel for the Child shall not be deemed to be a witness in these proceedings. 5. Counsel for the Child is authorized to make applications to this Honourable Court including but not limited to seeking further direction and seeking relief on behalf of the Child as Counsel for the Child deems appropriate and necessary. 6. The North Vancouver Registry shall fax a copy of this Order to the Child and Youth Legal Centre to 778-657-5544. 7.

The Child may be contacted by telephone at xxxx or by email at xxx . 8. This matter is adjourned May 7, 2020 to the Judicial Case Manager’s Office to fix a date. Counsel is to contact the Judicial Case Manager by email. 9. Dispense with the need for parties signatures. A Judge of the Provincial Court Of British Columbia Page 2 of 2 Original: North Vancouver Provincial Court CORRIGENDUM Released May 27, 2020 Re: Initials of Applicant’s name on cover page of The Reasons for Judgment On the cover page, initials of the Applicant should read: BETWEEN: A.W. APPLICANT ____________________________ The Honourable Judge S.

Merrick Provincial Court of British Columbia