C.E.M. v. S.E.T. Date:, 2017 BCPC 382

Citation: C.E.M. v. S.E.T. Date: 20171201 2017 BCPC 382 File No: F2196 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.E.M. APPLICANT AND: S.E.T. RESPONDENT DECISION OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Applicant: R. Hainsworth Appearing on their own behalf: S.E.T. Place of Hearing: Powell River , B.C. Date of Hearing: December 1, 2017

Date of Judgment: December 1, 2017 [ 1 ] The parties appeared before me on a contested Notice of Motion filed September 14, 2017, that was initially returnable on September 20, 2017. The Notice of Motion was adjourned in order to ensure that it was served with the requisite notice provisions, however, on September 20, 2017; I ordered that neither party shall file any further Affidavits, Notices of Motion, or Applications without leave of the court. All parties were present and were aware of that order.

S.E.T. acknowledged that S.E.T. endeavoured to file a number of documents yesterday at the registry and advised the court at this motion that it was “confusion” on the part of the registry.

I have assured both parties that there is no “confusion” on the part of this registry and once again they are reminded that no further motions, Applications, and Affidavits shall be filed without leave of this court. [ 2 ] There was an outstanding scheduled Notice of Motion for a change of venue and that motion was heard before The Honourable Judge Webb on October 5, 2017, wherein he dismissed S.E.T.’s request for a change of venue.

In particular, the order states: In the event that the parties are able to confirm that earlier trial dates are available in either North Vancouver or Vancouver, that accommodates the needs and times of the parties and counsel, the application for a change in venue can be reconsidered.

This is a clearly high conflict situation where little cooperation is shown by either party and there is a significant need to have some finality to the voluminous materials that are before the court, and so any change of venue should only be reconsidered in the event that earlier dates prior to the February 28 and 29, 2018 dates are available. I, too, echoed similar words to the parties both on September 20 th and on today’s date that this is very clearly a high-conflict file and it is abundantly clear that certainty and finality must be put in place for the best interest of the Child.

These parties have both Provincial Court and Supreme Court files ongoing. [ 3 ] S.E.T. initially opposed the motion before me on today’s date wherein C.E.M. is seeking a privately prepared s. 211 report specifically by Dr. Elterman and that the parties are to equally share such expense. [ 4 ] The threshold for consideration of a s. 211 report is relatively low. Having had conduct of this file on September 20, 2017, upon reviewing the file and after hearing the submissions, it is abundantly clear to me that it is in the best interest of the Child to have a s. 211 report prepared.

The mother initially objected to such a report, advising the court that she has binders of reports and documentation from caregivers, counsellors and doctors that the court would be able to make a reasonably informed decision, thus saving the expense of such a report. I respectfully disagree. Given the acrimony between the parties and the voluminous amounts of material already in the court file, a s. 211 report is a neutral, unbiased and objective conduit for the court to assist in making a determination at the upcoming trial the best interest for the Child.

Binders of materials not only adds additional time to an already tightly scheduled trial, but would also not provide a concise and objective analysis required for a s. 211 report regarding the Child, approved by a neutral and court qualified expert. [ 5 ] Counsel for C.E.M., has presented to the court the decision of Keith v MacMillan 2014 BCSC 1352 , wherein The Honourable Madam Justice Donegan carefully considered the value of a s. 211 report. Section 211(1) of the Family Law Act , permits the court to appoint a person to “assess, for the purposes of a proceeding under

Part 4, one or more of the following:

a) the needs of a child in relation to a family law dispute;

b) the views of a child in relation to a family law dispute;

c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child” and s. 211(2) states:

(2) A person appointed under subsection (1) (

a) must be a family justice counsellor, a social worker or another person approved by the court, and (

b) unless each party consents, must not have had any previous connection with the parties. [ 6 ] As carefully considered in the Keith , supra , decision, notably at paragraph 67, the court noted that the threshold for justifying such an order to be made is low and relied upon the decision of Smith v Smith , 2014 BCSC 61 , wherein The Honourable Mr.

Justice Affleck stated at paragraph 11: The only factor of importance for this court on this application is an endeavour to determine the best interests of the children….I am concerned that the strains between them have deprived them of the capacity to view their children’s interests dispassionately.

There may be compelling reasons why….. [and] without an investigation of the reasons….this Court will not be in a position to come to an informed decision on the present applications. [ 7 ] Given the acrimony between the parties before me, I am satisfied that for the best interest of the Child the best manner in which this court can make an informed finding and determination is for the preparation of a s. 211 report. [ 8 ] The next issue for consideration is that of the expense.

The Notice of Motion before me proposes that the parties equally share such expense, however, counsel for C.E.M. has advised me today that C.E.M. is prepared to pay for such an expense. [ 9 ] S.E.T. has been in receipt of this motion since September 2017. S.E.T. has advised the court only today that S.E.T. only found out two days ago that S.E.T. has had an interaction with Dr. Elterman a number of years ago regarding a different matter.

S.E.T. failed to advise counsel for C.E.M. of this and has failed to provide particulars or any documentation to support such a submission, however, was able to find the time to produce a number of other named qualified experts for the preparation of this report. This concerns me and I am unable to determine or confirm if he has engaged with S.E.T. on another matter which is completely unrelated and if so, the scope of his engagement. That lack of information is prejudicial to ensuring that this report be prepared on an expedited basis given the looming trial date.

That also puts counsel for C.E.M. in a position of not being advised prior to her submission in the court today to undertake researching any alternatives or confirming the submissions of S.E.T. That on the part of S.E.T. is contrary to the best interest of the Child and is a further delay in this already cumbersome process. I am not prepared to delay this process any further.

[ 10 ] Counsel for C.E.M. has made a verbal motion that the parties’ medical records be produced for the preparation of this report. Given that proper notice was not provided I am unwilling to give such an order and so, too, given that the trial date is in February 2018, I do not believe it would be reasonable to expect medical experts and physicians to furnish medical clinical records in such a timely manner for the

Section 211. There should be no further delay in the trial of this matter. That being said, S.E.T. has verbally advised the court today that S.E.T. has “binders” of documentation, reports, and records from parties in the medical field on behalf of S.E.T. and that S.E.T. would agree to furnish those to the preparer of the s. 211 report and that will be considered in forming my Order herein. [ 11 ] There are two Children, that being: O.E.T.M., born [omitted for publication] and A.C.D-T., born [omitted for publication]. The youngest child is the subject of these proceedings.

The parties are unable to properly communicate with one another on a reasonably informed basis in an attempt to resolve the outstanding matters and the court file is fraught with voluminous affidavit materials in which this court is unable to make an informed decision and thus, my order remains in place that no further motions, Applications and Affidavits shall be filed without leave of the court. I am concerned given the acrimony between the parties that insufficient court time has been scheduled; however, I shall leave that to the presiding trial judge to manage the conduct of the file.

The parties are reminded of the order of The Honourable Judge Dyer of July 10, 2017, wherein it appears that my colleague endeavoured to undertake some trial management and ordered that there are to be three independent hearings. That order has worked well in terms of file management for the court and remains in place. The first, which has been concluded, is the change of venue and that was dismissed. The second is that of guardianship, parental responsibilities, parenting time and contact time. That is scheduled in February 2018.

That last is that of what I will refer to the financial matters between the parties. S.E.T. made a verbal motion today seeking financial disclosure from C.E.M., however, I will draw to the parties’ attention that my colleague on July 10, 2017, ordered and articulated that disclosure to be made by one another within 14 days of the hearing. That hearing is to be heard and scheduled after the guardianship and sundry other relief is heard, including any continuation dates if so required. [ 12 ] I believe that it is in the best interest of the Child that a s. 211 report be prepared.

It allows an objective and professional consideration of all the requisite elements in s. 211 to be addressed.

I am doubtful that such a report will meet the required notice provisions; however, given that S.E.T. did not object to the preparation of the report in her latter submissions, I will impose a deadline for such report in any event as part of my Order. [ 13 ] The parties are reminded that the trial time has been scheduled commencing in February 2018 and if the parties continue to be acrimonious with one another and the trial does not complete within the scheduled and allocated time, that a continuation will result, thus delaying a determination for the best interest of the Child in this matter and therefore are encouraged to be mindful of such moving forward with the trial date looming.

WHEREFORE THIS COURT ORDERS:

a) A report shall be prepared by Dr. Elterman pursuant to s. 211 of the Family Law Act to address the needs, views and best interests of the Child and the ability and willingness of the parties to satisfy the needs of the Child;

b) If Dr. Elterman has been engaged with S.E.T. in the past, he shall be disqualified from the preparation of such a report;

c) If Dr. Elterman is disqualified from the preparation of such a report, C.E.M. is at liberty to select the qualified person pursuant to s. 211 of the Family Law Act to prepare a report to address the needs, views and best interests of the Child and the ability and willingness of the parties to satisfy the needs of the Child;

d) BY CONSENT, both parties shall furnish forthwith to the preparer of such report any and all documentation that he or she may have on hand in terms of physical, mental and psychological medical documentation that may assist the writer of such a report;

e) C.E.M. shall bear the costs for the preparation of such a report;

f) Such report shall be concluded and a copy provided to each party (or counsel) no later than January 22, 2018; and;

g) Order dispensing of the signature of S.E.T. on the order herein;

h) Both parties are to provide one another with a detailed list of their respective witnesses, addresses, telephone numbers, and a

summary (will-say statement) of each no later than January 30, 2018. These are my Reasons. The Honourable Judge K. Arthur-Leung The Provincial Court of British Columbia