S.B. v. D.D.S. Date:, 2017 BCPC 28

Citation: S.B. v. D.D.S. Date: 20170123 2017 BCPC 28 File No: F70005 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.B. APPLICANT AND: D.D.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Applicant: K. Rongve

Appearing in person: Mr. S Place of Hearing: Nanaimo , B.C. Date of Hearing: October 21, 2016 Date of Judgment: January 23, 2017 The Issue [ 1 ] Mr. S has asked me to recuse myself from further proceedings in this case. Rather than attempt a

summary of the grounds upon which Mr. S advances this application, I attach as

Schedule “A” a transcript of his oral submissions on the application. Background [ 2 ] Mr. S and Ms. B are the parents of one child, E, who will have her fourth birthday in February, 2017. Mr. S and Ms. B separated in July, 2013. They disagreed on the issues of parenting time and parental responsibilities. As a result, Ms. B initiated this proceeding on July 29, 2013. [ 3 ] On July 29, 2013, His Honour Judge Dohm of this Court made an interim order, directing that E reside with Ms. B, that Ms. B exercise the parenting responsibilities set out in

section 41 of the Family Law Act SBC 2011, c 25, that Mr. S have supervised parenting time every second Wednesday from 4:00 p.m. to 6:00 p.m., and that Mr. S refrain from contacting Ms. B except by telephone for the purpose of arranging parenting time. E’s primary residence since birth has been her mother’s home. [ 4 ] On December 18, 2014, I directed that a report be prepared by Dr. Larry Waterman under the authority of

section 211 of the Family Law Act . Dr. Waterman is a clinical psychologist who earned his bachelor’s degree in psychology from the University of Waterloo in 1973, his master’s degree from the University of Windsor in 1976 and his PhD from the University of Windsor in 1980.

After receiving his PhD, he worked as a clinical psychologist in Windsor for two years, then as a clinical psychologist in the Department of Psychiatry at Woodstock General Hospital for six years, as a clinical practitioner in Quesnel and a consultant to the Quesnel School Board for a year, as the program coordinator for the Nanaimo Mental Health Centre for a year, and since then as a clinical practitioner in Nanaimo. He may be fairly described as a highly-qualified and very experienced practitioner of clinical psychology. [ 5 ] In preparing his report, Dr. Waterman: a. interviewed Mr. S and Ms.

B and observed each of them with E in their home environments; b. interviewed Mr. S’ parents and sister, Ms. B’s parents, four friends whom Ms. B provided as references, one friend provided by Mr. S as a reference, Mr. S’ pastor, the pastor’s wife, a social worker who had provided counselling services to Mr. S and Ms. B, and Ms. B’s family doctor; c. administered to each of Ms. B and Mr. S two batteries of psychological tests, the “Personality Assessment Inventory” (or “PAI”) and the “Million Clinical Multiaxial Inventory III” (or “MCMI-III”). [ 6 ] Dr. Waterman delivered his report on July 6, 2015.

It comprises 95 pages, and presents a very thorough, thoughtful and credible assessment of the parenting skills and challenges of both parents. The following passages from the report are pertinent to the present application: Under the Heading “PAI Results for [Mr. S]” Of particular concern is the level of his hostility and paranoia, which may be accompanied by potentially delusional thoughts.

He appears to be an extremely hypervigilant person who questions and mistrusts the motives of those around him. … because of his level of hypervigilance, suspiciousness and resentment, he may be seen by others as hostile and his working relationships may be very strained even if others are trying to demonstrate support and assistance to him. * * * There was no evidence of significant obsessive-compulsive thoughts or behaviours but he is probably hypervigilant in trying to avoid any contact with situations or individuals who he perceives as not treating him well. [Mr.

S] also reported a number of symptoms consistent with a significant level of clinical depression. * * * [Mr. S’] test results also suggested that his use of drugs has had many negative consequences in his life at a level that is above average even for individuals who attend specialized treatment programs. His pattern of results suggested that his use of drugs has had numerous ill effects in his life including strained interpersonal relationships, legal difficulties, vocational failures, financial hardships and/or possible medical complications from prolonged drug use. [Mr.

S] reported having little ability to control the effects that the drugs are having on his life. With this level of problems, it is probable that [Mr. S] is drug-dependent and withdrawal symptoms may be a part of the present clinical picture. …. * * * [Mr. S] reported a number of problematic personality traits such as being emotionally labile, demonstrating fairly rapid and extreme

mood swings and in particular, episodes of poorly controlled anger. This level of mood disturbance is consistent with a history of intense and volatile relationships. His lack of success in relationships has probably left [Mr. S] preoccupied with consistent fears of being abandoned or rejected by those around him. [Mr. S] reported that his thought processes were marked by confusion, distractibility and difficulty concentrating. He may also have problems communicating clearly, because at times his speech may be tangential or circumstantial. * * * [Mr.

S] reported that at the present time, he is experiencing recurring thoughts of self-harm and suicidal ideation. His score was high enough that it must be considered a significant warning sign of the potential for suicide despite elevations on other scales. This risk is heightened by a number of features such as high situational stress, social isolation and a sense of hopelessness. [Mr. S] reported being potentially prone to more extreme displays of anger including damage to property and threats of assault to others. These may happen unexpectedly and take others by surprise.

When they happen, it is likely that those around him may be intimidated by his temper and his potential for violence. Under the Heading “MCMI-III Results for [Mr. S]” [Mr. S’] results showing his abuse of drugs is consistent with his report that he is addicted to morphine. [Mr. S’] results suggested that he either has abused or is abusing drugs. Whether legal or illicit, it is not possible to determine from these test results. Under the Heading “Summary of Relevant Information” The results of [Mr. S’] personality assessments are clearly concerning.

His results were consistent with behaviours identified by other individuals regarding how [Mr. S] presented both at his workplace and in his personal life. Unfortunately, the severity of those concerns raises significant questions about [Mr. S’] ability to care for E in a loving and reasonable manner on a consistent basis. Under the Heading “Recommendations” It is recommended that [Ms. B] be granted sole guardianship of E. This will include day-to-day care of E as well as being granted the ultimate decision-making authority for E. It is recommended that [Mr.

S] be granted reasonable and generous access to E but his access should be limited to 9:00 a.m. until 6:00 p.m. at the present time. * * * It is recommended that [Mr. S] obtain an immediate referral to a psychiatrist for a complete psychiatric evaluation including an evaluation of his use of any medications or drugs legal or otherwise. As part of that psychiatric evaluation, it is recommended that [Mr. S’] psychological test results, which are summarized in this report, be made available to the assessing psychiatrist. It is also recommended that [Mr.

S] participate in whatever treatment plan is developed, whether provided by a psychiatrist or a psychologist. [ 7 ] The issues of guardianship, residence and parenting time came on for trial before me. The trial began in December, 2014, continued in September, 2015 and concluded in November, 2015. [ 8 ] At my request, Dr. Waterman attended to give evidence orally at trial. Both Ms. Rongve, counsel for Ms. B, and Mr. S declined the opportunity to cross-examine him on his qualifications, and both accepted him as qualified to opine on the matters reviewed in his report.

I conducted his examination in chief, and he was cross-examined by Ms. Rongve and by Mr. S. The following passage is taken from the transcript of his evidence in chief: Q. But you have a concern about Mr. S caring for E overnight? A. Yes, I do. Q. What is that? A. … Mr. S’ psychological test results … were, to put it bluntly, very disturbing. … they were quite extreme. They indicated that he has a lot of distress and is quite troubled, in a number of different areas.

I think that he is quite capable of looking after E for a certain length of time, such as during the day, for eight hours. … I’m not so sure, over a prolonged period of time, whether he would be able to maintain his ability to care for her appropriately. Q. Okay. Let’s be a little more specific. Are you worried that he might become violent? A.

I am worried that he might not be -- he might engage in behaviour that would not allow him to care for her, such as drug abuse ... becoming severely depressed, not able to function in those ways that he needs to function; perhaps taking medication before he goes to bed, to help him sleep, and not being able to be roused if she wakes up and starts to cry. * * * Q. He has been diagnosed, elsewhere, as having a depressive disorder. I take it you would agree with that. A. That’s part of the - what the problem was. Yes. Q. All right. What are the other parts?

A. Some of his results indicate that he is a schizoid personality, which means he tends to be someone who is -- does not have a lot of relationships … does not engage in relationships very easily. He is rather uncomfortable in them; tends to be more isolated; doesn’t have a lot of social support. * * * Q. So, if I were to boil it down, the concern is that, when Mr. S is not doing well, personally, he may not pay enough attention to what is happening for E. A. That’s part of the concern, yes. Q. Okay. What’s the other part? A.

Someone with the test results that he obtained on the two personality inventories that I administered to him … would probably react in the kinds of ways that were reported by the child’s mother and her parents; getting angry very quickly, being rather impulsive, acting out. I don’t think he would do that to E now, but, over a prolonged period of time, I think that the possibility of that increases -- which is why I was hoping a psychiatrist would evaluate him and see whether or not there was something they could do with the medication, to keep him calmer and able to function better.

During his cross-examination of Dr. Waterman, Mr. S did not suggest that Dr. Waterman was in any way biased against him, or that Dr. Waterman’s report was anything other than an honest effort by Dr. Waterman to apply his professional expertise to the information available to him. [ 9 ] Mr. S tendered as witnesses Dr. Nel, his family doctor, and Dr. Fadeyi, his treating psychiatrist. Dr. Nel sees Mr. S several times each month. Dr. Fadeyi saw Mr. S for four office visits in 2010, two office visits in 2011, not at all in 2012 – 2014, and for three office visits in 2015. [ 10 ] Dr. Nel said: … the tools that Dr.

Waterman used are not tools that I’m familiar with, so commenting on specific tools that were used might be better left to someone that’s either a peer of Dr. Waterman or otherwise maybe a psychiatrist. … I do not think that [Mr. S] currently has a problem with … alcohol, and in the report it’s implied that he might be an alcoholic. I’m not under that impression. I also do not have reason to suspect that he’s currently having a problem with any other form of addiction.

However, I do think he had past problems with addiction … that is still affecting his life at this stage, but I don’t think that he is still having an addiction problem. * * * … anyone that has increased anxiety or decreased mood, in other words, depressive symptoms is technically speaking at an increased risk for committing suicide. On numerous occasions, I have discussed suicide risk with Mr. S, and … there’s never been any acute or immediate worry about him being suicidal. … I do think that his mood is at times low, but then once again I think a lot of that is created by the ongoing situation.

I have never been acutely worried about him being at imminent risk for suicide, no. No more than I am with many, many other patients that I see on a very regular basis. Mr. S put to Dr. Nel the question: Have I ever given reason for you to be concerned that I might be suicidal? Dr. Nel replied: Yes, anyone that’s … struggling with depression or anxiety, I am always worried about … them being suicidal, even when it’s under the amount of stress as you must be at the moment. I’m always worried about them being suicidal, especially middle-aged men in a situation where you are at the moment.

We are really bad at predicting who of them are at an increased risk for suicide …. When cross-examined by Ms. Greves, counsel for the Family Maintenance Enforcement Program, Dr. Nel said: You also have to remember when I see Mr. S, I’m seeing him … as his doctor, so my primary goal is to try and keep him healthy … -- his health is my priority so achieving that includes giving -- there’s got to be some trust from both parties, so I’m not going to try and look for reasons not to believe him. * * * I haven’t had any clear reason to doubt the sincerity of his complaints.

I haven’t had a clear reason to suspect that he is lying or trying to manipulate me, but, once again, it’s quite different from what you have to do in your line or job. My first reaction should be to believe my patient and to trust him. [ 11 ] Dr. Fadeyi first saw Mr. S in December, 2010, at which time he diagnosed Mr. S as having “general anxiety disorder and depression”, for which Dr. Fadeyi prescribed medication. He saw Mr. S intermittently until 2015, at which time he modified the diagnosis to “major depressive disorder”. He describes Mr. S as “… reasonably stable in terms of his depression and anxiety …”.

In relation to Mr. S’s current employability, Dr. Fadeyi said: … he has to subjectively decide whether or not he can cope with a full-time job or a part-time job. … as a psychiatrist, we will be able to get him to where he’s stable mentally and be stable on medication, but … the amount of stress that he can cope with is -- he is the one

that will be able to really let us know. In relation to Mr. S’ ability to care for E, Dr. Fadeyi said: … my best thought to that is I can comment on mental state because if what we are worried he could possibly [indiscernible] severely depressed is that indeed it is a risk factor [indiscernible] issues concern is that possibly suicidal. It could be a thing that will bother people, too. But in this instance, and all my consult with him, and with the reports which I have, you know, … on record, he has never expressed any suicidal ideation to me, and there was never a time that he expressed any suicidal ideation.

So, in terms of since that’s only what I have to work with, and I don’t have a concern that he is a risk to himself or others, including his daughter. In relation to Dr. Waterman’s report, Dr. Fadeyi said: I went through it thoroughly. It was an elaborate report, and I truly digested it, and I commend him for the work that he did. * * * I don’t know [Mr. S] much enough, and I didn’t have the opportunity that the psychologists have to have collateral history on the … broad spectrum that way. I can’t obtain collateral history from many of [Mr.

S’s] family to read, … so I won’t say that I know him in terms of his personality. All I can comment on is whenever our meeting about an hour for psychiatric consultation and follow-up is normally about 20 minutes to 30 minutes in my office … which is not enough to really know the person and what he’s like as a person, but the psychologist’s report gave a lot of broad view about the individual which I do accept. * * * All I can say is what I can comment on the current mental state of [Mr. S] for now that he’s not at risk to himself and not at risk to [indiscernible] including his daughter.

But as to care, care … has something to do with personality issues, too, individual, so I`m not able to comment on that because I don`t know [Mr. S] to that extent. I then asked Dr. Fadeyi the following question and received the following answer: Q. Yes, I understand. So, in terms of parenting skills, Dr. Waterman has more information and a better opportunity to make an assessment than you do? A. Exactly. During cross-examination by Mr. S, Dr. Fadeyi emphasized the importance of access to collateral sources, which Dr. Waterman had and Dr. Fadeyi lacked, in assessing parenting capacity. [ 12 ] In 2015, Mr.

S attended at the False Creek Healthcare Centre in Vancouver, where he was assessed by Dr. Shimi Kang, a practicing psychiatrist and Clinical Associate Professor at the University of British Columbia Medical School. Because Mr. S declined to call Dr. Kang for cross-examination, I concluded that her opinion was not admissible for the truth of its contents, but that her report could be received to prove that Mr. S had sought a psychiatric assessment, as recommended by Dr. Waterman. The following are pertinent extracts from Dr. Kang’s report to Dr. Nel. At the present time, [Mr.

S] says that he does not use nicotine, alcohol, marijuana, illicit or prescription drugs. He states that several years ago, he became physically and psychologically dependent on Morphine. He states it was prescribed by his family doctor for migraine headaches. [ 13 ] I rendered a written decision on December 1, 2015, reported at [2015] BCJ No. 2687 ; 2015 BCPC 349 . In relation to the medical evidence, I said, at paragraph 12(b): Dr. Waterman expresses concern about risks to E’s safety during overnight visits with Mr. S. While I cannot say that Dr. Waterman is necessarily right, and Drs.

Fadeyi and Nel necessarily wrong, about the risk which Mr. S may pose to E during overnight visits, I cannot discount the risk that Dr. Waterman may be right. If Dr. Waterman is right, and I allow overnight visits, the consequences for E are likely to be very serious. If Drs. Nel and Fadeyi are right, and I decline to allow overnight visits, the potential consequences for E will be much less serious. That being so, I do not think that I should allow overnight visits at this stage. I ordered that: (

i) E’s primary residence be with Ms. B; (ii) Ms. B exercise the parental responsibilities set out in

section 41 of the Family Law Act ; and (iii) Mr. S have parenting time on two days each week between the hours of 9:00 a.m. and 4:00 p.m. I also directed that I be seized of future proceedings in this case, and that Mr. S should submit any future applications to me for vetting before serving them on counsel for Ms. B. I made the latter direction because Mr. S and Ms. B are both people of very modest means. Mr. S elected to represent himself and Ms. B elected to retain counsel, each being a perfectly appropriate choice.

I was concerned by the length of the hearing over which I had presided, and the cost burden which it imposed on Ms. B. It seemed to me likely that Mr. S would bring further applications before the court. It seemed to me necessary to ensure that any future application by Mr. S was prima facie meritorious before imposing on Ms. B the burden of responding to it. The Appropriate Forum [ 14 ] Mr. S has asked me to declare myself to be biased, and to disqualify myself for that reason. It is wisely said that no one should be a judge in his or her own cause. I have considered whether I should refer Mr.

S’ application to another judge of this court, but have decided that I should not because of the long-standing practice in this court that an application of this kind should be heard and decided by the judge who is asked to disqualify himself or herself. I do not think that I should burden one of my colleagues with a problem which is thought, by long custom and practice, to be mine.

[15] I point out that Mr. S could have brought his application in the form of an application for an order in the nature of prohibitionunder the Judicial Review Procedure Act RSBC 1996, c 241. Such an application would be heard and decided by a Justice of the BritishColumbia Supreme Court. I think that would have been a better procedure to follow for two reasons: (

i) it would relieve me of theobligation to adjudicate a complaint about my own conduct; (ii) it would, no doubt, assure Mr. S of the integrity of the process. [16] Be that as it may, the application has been put before me and it is my duty to adjudicate it to the best of my ability. Legal Principles [17] A very helpful

summary of the relevant jurisprudence is found in Lesiczka v. Sahota, 2007 BCSC 479 , [2007] BCJ No. 723; 2007 BCSC 479; [2007] 10 WWR 456; 70 BCLR (4th) 265. [18] In many family law cases, it is not possible to resolve all of the issues of parenting time and parental responsibilities at a singletrial. That is because the relationships among the parents and children are constantly evolving. The needs of the children, and theabilities of the parents to meet those needs, change as the children mature and as the relationship between the parents change.

When therelationship between the parents is implacably hostile, it is often advantageous to assign a single judge to follow the case over a period oftime, which may be several years. In many, perhaps most, cases, the opportunity to observe the family longitudinally over a period oftime exponentially improves the judge’s insight into the dynamics of the family relationships, and contributes to better outcomes for thechildren. [19] Inevitably, a judge who follows a family in that way forms opinions as to the parenting capacities of the parents and the needsof the children.

The formulation of such opinions is a necessary part of the process of adjudication, and serves the best interests of thechildren. If two conditions are met, such opinions do not constitute disqualifying bias. The conditions are: a. The opinions must be rational conclusions drawn from admissible evidence. b. The judge must, at all times, remain open to persuasion on the basis of evidence: Lesiczka v. Sahota at paragraphs 7 – 9. Where those two conditions are met, the assigned judge should not, generally, accede to an application like the one now before me. There are three reasons for that: a.

First, and most importantly, the children who are the subject of the proceedings should not be deprived of the benefit of havingan assigned judge unless compelling grounds for recusal are established. b. “Judge shopping” is unfair to the opposing party (in this case, Ms. B), and is to be discouraged: Dempsey v. Envision CreditUnion 2005 BCSC 1730 at paragraph 11. c. A judge has a duty to hear and decide the cases assigned to him or her, and should not shirk that duty: Lesiczka v. Sahota atparagraphs 20 – 25. Consideration of Mr. S’ Complaints [20] I will address Mr.

S’ complaints in the order in which they appear in Appendix “A”. [21] I had, and have, a concern that Mr. S may burden Ms. B with court applications lacking in merit, with the result that she willincur legal expenses which she cannot afford. That concern arose from Mr. S’ conduct during pre-trial proceedings and the trial, notfrom any animus for Mr. S. Suffice it to say that the transcripts of the proceedings over which I presided in this case before I renderedmy judgment on December 1, 2015 comprise 963 pages.

By December 1, 2015, it was apparent to me that the proceedings had becomedisproportionate to the issue, and that judicial management was necessary to constrain the proceedings within reasonable bounds. [22] I was confirmed in that opinion by an application which Mr. S brought in December, 2016, seeking overnight parenting timewith E during the Christmas holiday. I gave leave for the application to be set for hearing on short notice, despite the facts that (

i) Mr. Shad not complied with Rule 5 of the Provincial Court Family Rules BC Reg 417/98, and (ii) the time for Ms. B’s response had notexpired prior to the hearing date. On that application, Mr. S proposed that the visit be supervised by Mr. S’ sister. No affidavit from thesister was filed in support of the application and she did not attend the hearing. At paragraphs 14(

d) and (

f) of my earlier judgment, Isaid: I am concerned about the proposal that Mr. S’ parents should supervise extended periods of parenting time. I asked each of themwhether they gave any credence to Dr. Waterman’s report. Mr. S’ father replied that he had read the report, that he considered Dr.Waterman to be entirely mistaken in his conclusions, and that he put no credence in the report. Mr. S’ mother replied that she had readpart of the report, but had stopped reading it because she found it distressing, and that she put no credence in the report. In my judgment,Mr.

S’ parents are not suitable candidates for the role of parenting time supervisor. An effective parenting time supervisor must be: (i)aware of the risks which led the court to impose a supervision requirement; and (ii) ready, willing and able to take steps to manage thoserisks in a way which will keep the child safe. Mr. S’ parents do not believe that there are any risks. As a result, they would not bereliable supervisors. * * * At the moment, there is no sufficient proposal in place to allow overnight visits [by E with Mr. S]. However, it would be in E’s interestto devise such a proposal.

I think that these are the essential elements: i. An appropriate supervisor must be identified and recruited. That supervisor must be a person who has read Dr. Waterman’sreport and these reasons, and is willing accept and take seriously the supervisor’s obligation.

At the hearing in December, 2016, I pointed out to Mr. S that the absence of evidence from his sister made it very difficult to assess her suitability as a supervisor. In response, Mr. S said that he was confident that his sister shares his parents’ views in relation to Dr. Waterman’s report. I dismissed his application for that reason. In hindsight, I should have refused leave to bring the application in absence of clear evidence that an appropriate supervisor was available. The unfortunate consequence is that Ms. B bore the cost of an application which was entirely devoid of merit. [ 23 ] At paragraph 7(

a) of my previous judgment, I attributed to Drs. Nel and Fadeyi the statement that Mr. S “… suffered from an addiction to opiates and from excessive use of alcohol, but that those addictions are now in full remission …”. That statement was partly incorrect. Drs. Nel and Fadeyi did say that Mr. S had previously suffered from an addiction to opiates. As is apparent from the evidence quoted above, they were led to that conclusion by information provided to them by Mr. S. I have searched the record carefully in an attempt to ascertain what led me to think that Mr.

S also suffered from an addiction to alcohol, and can find no evidence to support that assertion. I erred, and apologize for my error. [ 24 ] I have never described Mr. S as schizophrenic. In my previous judgment, I said: Psychological tests, administered by Dr. Waterman, indicate that Mr. S suffers from major depressive disorder, anxiety and schizoid personality traits, and that he has either abused drugs or is now doing so. That was, and is, a fair

summary of Dr. Waterman’s evidence, as quoted above. [ 25 ] I have never described Mr. S as a drug addict. I correctly paraphrased the evidence of Drs. Nel and Fadeyi respecting his previous addiction to opiates. [ 26 ] I am not aware, and there is no evidence to support an assertion, that there was an agreement that Ms. B’s parents would complete the same battery of psychological tests as were administered to Mr. S and Ms. B. Dr. Waterman administered those tests to E’s parents and, so far as the evidence shows, no one else. [ 27 ] I did not “… make it nearly impossible …” for Mr. S to appeal my decision.

If the governing statutes have that consequence, it is one created by the Legislature, not by me. [ 28 ] I have not empowered Ms. B or her parents to decide anything. My assessment, after listening at length to the evidence of Mr. S and Ms. B, is that there is no possibility that they will ever cooperate in any useful way in parenting E. The evidence of Mr. S contributed as much to that conclusion as did the evidence of Ms. B. [ 29 ] I am of the view that children benefit from a stable and consistent home environment over a period of years.

For that reason, if a child has spent her first four years in the care of one parent, and is apparently doing well, as E is, it is unwise to make a change in her living arrangements. That is a reasoned conclusion from my experience of children and family litigation, and reflects no animus for Mr. S. I would say the same to any father similarly situate. [ 30 ] As noted, I have never described Mr. S as schizophrenic or as a drug addict. The conditions from which I hope that he may someday recover are those described by Dr.

Waterman, of which the most significant appears to be major depressive disorder (also diagnosed by Dr. Fadeyi). [ 31 ] At the conclusion of the case for Ms. B, on September 9, 2015, there ensued a discussion among Mr. S, Ms. Rongve and me about which witnesses Mr. S wished to call and when they might be available. It became apparent during that discussion that Mr. S was unaware of the need for his witnesses to attend court and give their evidence orally. That was particularly difficult for him because Drs. Nel and Fadeyi practice in Port Alberni, an hour’s drive from Nanaimo, and Mr.

S had made no arrangements for them to attend court in Nanaimo or to give evidence by video link from the Port Alberni courthouse. Some other aspects of the process were also, understandably, obscure to him. After some discussion of those subjects, Mr. S expressed an intention to seek legal advice. I suggested that Mr. S take the witness box and commence his evidence in chief, with the understanding that he would later consult counsel about his other witnesses. In response to that suggestion, Mr. S said: I’m -- I’m not -- and I’ll be honest with you here.

I left some stuff in my motel room, ‘cause I wasn’t ready to give my testimony today. I can definitely start it today. But I would want to be better organized than I am right now, and I’m not that organized right now, pertaining to my own testimony. Ms. Rongve objected to the proposal that we adjourn early for the day. She said: If Your Honour gives an adjournment over to tomorrow now, we have lost another hour to an hour and a half, depending on when Your Honour wanted to end today. That’s valuable court time. It makes it less likely that we’re going to finish tomorrow.

I think we need to use all of the time that we have allocated to us, in the hopes of completing tomorrow. I said: Well, I would be surprised if we could set up a video link for Dr. Nel, in time to do him tomorrow. That would surprise me. We’d need a courtroom in Port Alberni, and, at the moment, we don’t have one. * * * Ms. Rongve, I am very much inclined to give Mr. S an opportunity to organize his thoughts. That seems fair to me. I’m not sure that there’s anything else that’s useful we can do today. I’m open to suggestions. Ms. Rongve replied:

Well, if I -- I think I understand what Your Honour is saying. I’m -- Mr. S knew that he was going to be testifying. So, I find it very hard to understand why he is not prepared to, at least, start his testimony today. I just - quite frankly, there is a level of responsibility here that Mr. S never seems to come up to. …. I said: Okay. I am conscious that Mr. S is labouring under a disability. So … Mr. S interjected: I am sorry, Your Honour? I replied: Well, Dr. Waterman described a number of emotional conditions from which you suffer.

We try to make accommodations for people who have those difficulties. [ 32 ] It is no insult to refer to someone as a person with a disability. If that were so, it would necessarily follow that persons with disabilities are somehow less valuable or less worthy of respect than other persons. Many people have laboured for many years to rid our society of that misconception, and I do not share it. [ 33 ] A “disability”, in this context, includes a medical condition which impairs the ability of an individual to function in a social or employment context. In his report, Dr. Waterman opines that Mr.

S suffers from major depressive disorder, anxiety and schizoid personality traits. Dr. Fadeyi says that he suffers from anxiety and major depressive disorder. In his evidence, quoted above, Dr. Waterman describes the impact of those disorders on Mr. S’ ability to function in the workplace and in society generally. It is clear that Mr. S suffers from a disability. [ 34 ] I did not, and do not, apologize for referring to Mr. S as a person with a disability.

As explained below, it was a germane and necessary observation. [ 35 ] Like anyone else who provides a service to the public, I have a duty to make reasonable accommodations for people with disabilities. In particular, I am required to take their disabilities into account when exercising my discretion over procedural matters. [ 36 ] I am also obliged to give reasons, however brief, for the exercise of my discretion in procedural matters. Ms. B and Ms. Rongve were entitled to know why I did not direct Mr. S to proceed with his case. I granted Mr.

S a procedural indulgence which I might well have refused to a litigant who did not face Mr. S’ challenges. It was therefore necessary and appropriate for me to refer to Mr. S as a person with a disability. The reference did not reflect any disrespect or animus for Mr. S. Indeed, I felt and feel none. It was simply a necessary observation in the performance of my duties. [ 37 ] Ms. Rongve is counsel for Ms. B. A party who exercises her right to counsel is entitled to insist that the opposing party communicate with her counsel, rather than directly with her.

Given the history of conflict and hostile communication between Mr. S and Ms. B, it is my view that E’s best interests are served by introducing an intermediary into the chain of communication. [ 38 ] Mr. S refers to Dr. Waterman’s report as “biased and tainted”. There is no evidentiary basis for that assertion, which was not put to Dr. Waterman during cross-examination. Dr. Fadeyi, whom Mr. S called as his expert witness, commends Dr. Waterman’s report, and opines that Dr. Waterman is in a better position than he to assess Mr. S’ parenting capacity. I share Dr. Fadeyi’s assessment of Dr. Waterman’s work.

Disposition [ 39 ] I decline to recuse myself from this case. The Honourable Judge T. Gouge Provincial Court of British Columbia Appendix “A” SUBMISSIONS BY [Mr. S] [Mr. S]: Before I start, I just want to say good day, Your Honour. Before I state my reasons for the application before you, I just want to say that I am extremely thankful for the 14 hours a week that I have with our daughter. Out of the blue a couple weeks ago, my daughter says to me that she dreams about me in the playhouse at my place, so I know for her she's extremely grateful for those 14 hours as well.

My intention for bringing this application forward is not to attack you personally. My concern is that since I'm not a lawyer, it could be perceived that that's what I'm doing -- THE COURT: Mm-hmm. [Mr. S]: -- but that's not the case. THE COURT: I can assure you, [Mr. S], that I don't take these things personally.

[Mr. S]: I have been told that you are highly respected in your field and I do respect that. Neither am I here today seeking for you to change any judgments or orders. Simply, I'm asking you to fully recuse yourself from maintenance and custody issues. On August the 15th, I made application to this court that you yourself step down as judge over our custodial and maintenance matters. Preconceived opinions that are not based on actual experiences have been used as the foundational reasons for at least some of the judgments.

A prime example is in reasons for judgment dated December 1st, 2015, you make a judgment directing myself to first show you or another judge any application I bring forward to the court -- sorry, Your Honour -- THE COURT: Mm-hmm. [Mr. S]: -- I bring forward to the court before the other party needs to respond. During the parent conference, you said the premise for such a judgment is because you have concern I may bring inappropriate applications to the court.

The truth is, the application before you today is, the only application that I have made over the last three to four years that has found its way into this courtroom. What kind of fairness and justice is there in passing down judgments that are based on assumptions? Judgments have been based -- have been made on incorrect information. An example is in the reasons for judgment dated December 1st, 2015. You said -- sorry, Your Honour -- this court says that Dr. Nel and Dr. Fadeyi say that I suffer from excessive use of alcohol. This information is incorrect and not true. At no time did Dr. Nel and Dr.

Fadeyi say that I suffered from excessive use of alcohol. How is it possible for someone who doesn't drink to be an alcoholic, someone who doesn't do drugs to be a drug addict, and someone who doesn't have psychosis to be schizophrenic? Not only did you base your judgments on incorrect information, you chose to ignore critical evidence that said otherwise. In the same report, it's made mention that Larry Waterman did not find any psychosis with [Ms. B’s parents]. What you failed to mention is that Larry Waterman did not do testing on [Ms. B’s parents]; testing that was agreed to and for some reason was not done.

You have even made it nearly impossible for me to appeal your judgments of December 1st, 2016 -- sorry, 2015. The interim orders do allow me to file for an appeal however, anyone that knows anything about law knows that appealing interim orders will cause a court to say that permanent orders are required in order to make a ruling on an appeal. I have gone to a lawyer asking to appeal, and that's exactly what I was told. You have made it clear that [Ms. B] and her parents are the ones who will decide if there is a problem in our communication -- whether it is true or not.

If they say there's a problem, then you will base a judgment on it. Not only do you give them full control on deciding if there's a communication problem, you also made a judgment that says she should have full parental rights on our child because of the problems they have said. Of course they will say there's a problem because that means [Ms. B] and her parents will retain full parental rights on E. You have made it very clear you have very little or no interest at all that I should ever have custodial rights with E. Page 6 of the reasons for judgment you say [as read in]: … however, even if [Mr.

S] were to fully recover some time from now, I would be reluctant to appoint him as the custodial parent simply because of the importance of stability and consistency in the living arrangements of young children. So, in other words, what you're saying is that you expect me to recover from things that I do not have. So that's an impossible task to accomplish. I cannot recover from being an alcoholic when I'm not. I cannot recover from being a drug addict when I'm not a drug addict. And I can't recover from being schizophrenic when I'm not schizophrenic.

So in other words, I will never, ever in this lifetime, as far as you're concerned, receive custodial rights on our daughter. The above concerns show a bias that, in my opinion, has been clearly reflected in many of your judgments. This is one of the reasons why I'm asking you to step down for custodial and maintenance matters. During the second day of trial, after Larry Waterman gave his testimony, you said in court that I should have more time to prepare for my testimony because of my disability. You labelled me as disabled before I even had a chance to defend myself.

What chance do I and my daughter have for fair and just judgments when I'm labelled by the very judge that is presiding over my custody and maintenance matters? You did apologize and I do appreciate it. However, my concern is that the comment shows an underlying tainted -- tainted opinion that has unjustly affected your judgments. I believe a reasonable apprehension of bias was fortified by the fact that even on acknowledgement that disabled was used there was no explanation or clarity to people in this court. The only conclusion that anyone in this courtroom could have had is that I am disabled.

The comment made me feel stupid and inadequate. I found it very belittling to be labelled disabled, especially without the right to defend this court's claims. Your Honour, I would prefer not to make application nor do I have the time or resources to make a complaint to the Judicial Council of the Provincial Court of British Columbia.

During the last parent conference it was suggested that Ms. Rongve be responsible for filtering the emails that [Ms.B] and I send each other. This suggestion, which I believe is derived from believing Ms. Rongve to be a non-partisan is greatly concerning. What chance do I and my daughter have for fair and just judgments if you yourself believe that Ms. Rongve would actually support me in my causes? She has clearly told me not only will I lose custodial rights on my daughter, I will also be getting supervised visits only.

When [indiscernible] that she be responsible for filtering the emails, insinuates that she is fair towards me. It is concerning that anything I say contrary to what she says will be dismissed because of a non-partisan attitude that this court apparently has towards her. Currently an inquiring committee is involved in investigating the expressed concerns regarding Larry Waterman's comments and actions. I believe not only will Larry Waterman be held accountable for his wrongdoings, the outcome of the College of Psychologist's investigation will also demonstrate that the s. 211 report was biased and tainted.

I expect to hear back from the Ombudsman regarding concerns and complaints about Child and Family Development; concerns and complaints about pictures of a little girl's private parts that were freely displayed in front of this very court. Reasons for displaying the innocence of a little girl were conveniently withdrawn without any mention of disrepute. The truth is, like it or not, I will continue to fight for my rights and the rights of my daughter. It is my concern that a biased outlook portrayed by this court influenced reasons for judgments.

I'm asking you to recuse yourself from all maintenance and custody issues. Thank you.