M.R. v. M.S., 2014 BCPC 160 (CanLII)
Citation: M.R. v. M.S. Date: 20140714
2014 BCPC 0160 File No: F70340
Registry: Nanaimo
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
M.R.
APPLICANT
AND:
M.S.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Appearing in person: M.R.
Counsel for the Respondent: S. Gosh
Place of Hearing: Nanaimo, B.C.
Dates of Hearing: July 4, 7, 11, 2014
Date of Judgment: July 14, 2014
The Problem
[1] There are presently in existence two orders of this court which are irreconcilable. Obedience to one would be disobedience to the other.
[2] On January 17, 2014, His Honour Judge MacCarthy ordered that M.R. have no parenting time with his son, A.R., unless and until his abstinence from illicit drugs had been confirmed by urine and hair tests, and that, even after such test results were provided, his parenting time be supervised. M.R. has provided urine samples, but has not procured or disclosed the test results. He has not provided hair samples.
[3] On June 13, 2014, Her Honour Judge Saunders ordered that M.R. have unsupervised parenting time with A.R. during defined hours, and that the police provide assistance, if necessary, to enforce that order. Judge Saunders’ order is not expressed to be a variation of Judge MacCarthy’s order, and there is no evidence of any material change in circumstances between January 17 and June 13, 2014, which would be a necessary condition precedent to such a variation: Family Law Act SBC 2012, c 25, sections 215 - 216.
[4] Each of the two orders was made at a family case conference. The family case conference before Judge MacCarthy was attended by M.S. (A.R.’s mother), Mr. Gosh (counsel for M.S.) and M.R. (who is unrepresented). Because notice of the family case conference before Judge Saunders did not reach Mr. Gosh, only M.R. attended that conference. Judge Saunders’ order was made in the absence of Mr. Gosh and M.S.
[5] At the hearing before me, M.R. and Mr. Gosh confirmed that M.S. and M.R. had both consented to the order made by Judge MacCarthy on January 17, 2014.
[6] No audio recording is made of family case conferences, with the result that no verbatim record of the proceedings exists. The practice is for the court clerk to make terse notes of the proceedings and of any orders made, using a court form with spaces for various items, including “Terms of Consent Order”, “Adjournment”, etc. The clerk’s notes of the conference on June 13, 2014 do not indicate: (i) whether Judge Saunders was informed of the existence of Judge MacCarthy’s order; (ii) whether Judge Saunders intended to order a variation of Judge MacCarthy’s order; or (iii) if so, what material change in circumstances, if any, was advanced to justify such a variation. I have considered whether I should consult Judge Saunders in an attempt to obtain the missing information. I have concluded that it would be improper for me to do so. I think it a fundamental principle that a judge should act only on information provided to the judge in open court, in the presence of the parties, so that the parties may challenge the accuracy of that information if they wish. If I were to consult Judge Saunders, I would feel obliged to do so in open court, in the presence of the parties. That could be achieved in the present circumstances only by calling her to give evidence. That would be inappropriate: Agnew vs Ontario Association of Architects [1988] OJ # 1181; 1987 CanLII 4030 (ON SC), 64 OR (2d) 8; Robertson vs Edmonton (City) Police Service 2004 ABQB 519.
[7] The significance of the missing information arises from the principles stated in Lower vs Stasiuk 2006 BCSC 864; [2006] BCJ #1257. In that case, Bernard, J heard an appeal from an order made by a Provincial Court Judge at a family case conference. The learned Provincial Court Judge had dismissed an application to vary a custody and access order on the ground that there had been no material change in circumstances since the order was made. On appeal, Bernard, J said @ paragraphs 24 - 25:
With all due respect to … [the learned Provincial Court Judge] …, I must conclude that he erred when he ruled upon a contested substantive issue at an FCC, for the following reasons. First, an FCC is not the forum for making rulings on contested substantive issues. It is evident from the Rules of Court that it is an informal hearing intended to promote resolution of issues by discussion and agreement. If agreement cannot be reached then orders and directions may be made to assist in resolution at a trial. It is not a forum in which evidence is properly tendered. A record of the proceedings is not kept.
Second, whether there has been a "material change in circumstances" is a substantive issue which the applicant must prove, to the satisfaction of the court, on a balance of probabilities. Proof of this issue, when it is contentious, may be accomplished only through the tendering of admissible evidence in the context of a trial, where procedural safeguards for fairness are in place. Rulings on contested substantive issues must not be made without first affording the parties the opportunity to (a) tender evidence; (b) test the evidence of the opposing party; and (c) make submissions to the court.
Applying those principles to this case, it is clear that Judge Saunders’ order should not have been made.
[8] Of course, I have no appellate jurisdiction. In most circumstances, the correct course for me to follow would be to leave the parties to pursue their remedies in an appellate court. I have decided to follow a different course in this case for the following reasons:
a. M.S. alleges that M.R. abuses alcohol and cocaine, and is an unsafe caregiver for a small child because he uses those drugs when caring for his son. I have heard evidence which, if accepted, would substantiate M.S.’ concern. Because child safety is the paramount objective of the Family Law Act, that issue must be resolved before M.R. has unsupervised parenting time with his son.
b. As matters stand, Judge Saunders’ order entitles M.R. to unsupervised parenting time with his son, and to police assistance in enforcing that entitlement.
c. No appellate proceedings have been launched, and there is no other venue in which appropriate protective measures can be taken.
This is clearly an emergency situation, in which something must be done.
The Facts
[9] M.R. and M.S. are the parents of one child, a son, A.R., who is now 30 months of age. M.R. and M.S. parted company in November, 2013. A.R. has been in M.S.’ care since separation.
[10] M.S. opposes M.R’s request for parenting time with A.R. because (she alleges) he abuses alcohol and cocaine, and is not a safe caregiver. M.R. acknowledges past difficulties with those drugs, but says that those problems are now behind him, and that there is no reason to restrict or prohibit parenting time. M.S.’ mother advanced the funds necessary to allow M.R. to attend several substance abuse counselling programs. He completed none of those, and says that he did not find them useful. He has not completed any formal treatment or counselling program for his substance abuse problems. In response to Judge MacCarthy’s order, he attended at a commercial laboratory and provided urine samples under supervision of the laboratory technician. Those samples have been tested, and the test results exist. However, M.R. says that he has not procured copies of the test reports because he is advised that they would be useless without formal identification (e.g. a driver’s license). He says that he has no such identification papers. He has not submitted hair samples for testing.
[11] Judge MacCarthy’s order included provision for a further family case conference. The Judicial Case Manager scheduled one for June 13, 2014. Unfortunately, the fact that Mr. Gosh was M.S.’ counsel of record had not been entered in the court’s computer system, with the result that notice of the family case conference was not sent to Mr. Gosh, who did not learn of the family case conference until after it had been held.
[12] M.R. appeared at the family case conference on June 13, 2014, but neither Mr. Gosh nor M.S. attended. M.R. says that he attempted to telephone Mr. Gosh’ office to find out why he was not in attendance at the family case conference, but received no helpful response. Mr. Gosh says that he has made enquiries, and no one at his office has any note or recollection of such a call. He was in court in another city on that day.
[13] This case first came before me on Friday, July 4, 2014, which was an unusually busy day in criminal court. I had only 20 minutes or so to spare for the case on that day. After hearing a brief outline of the circumstances, I suspended the operation of Judge Saunders’ order until Monday, July 7, 2014, when I was sitting in family remand court. Unfortunately, July 7 was an unusually busy family remand day, and I had less than an hour for the case on that day. I heard evidence from M.S., her mother and M. R., adjourned the case to July 11 to allow further witnesses to be called, and suspended the operation of Judge Saunders’ order during the adjournment. On July 11, I heard submissions from Mr. Gosh and M.R., and suspended the operation of Judge Saunders’ order pending delivery of these reasons for judgment.
Jurisdiction
[14] I do not think that I should express an opinion as to whether Judge MacCarthy or Judge Saunders made the right decision on the substantive issues; i.e. (i) whether M.R. should have parenting time before he produces clean drug test results; and (ii) whether his parenting time should be supervised or unsupervised. Those questions have been twice adjudicated, with inconsistent results. A third adjudication on the merits would simply compound the problem. The question before me is not a substantive one (e.g. should M.R.’s parenting time be supervised?), but rather a procedural one; i.e. the substantive issues having been twice adjudicated, first by Judge MacCarthy and then by Judge Saunders, with irreconcilable results, which order should I direct to be enforced? That question must be answered promptly. Obedience to one order necessarily requires disobedience to the other. The parties need to know which order to obey.
[15] I cannot set aside or vary Judge MacCarthy’s order. I could do so only if the evidence before me disclosed a material change in circumstances since the order was made: Family Law Act, sections 215 - 217. None was identified at the hearing before me.
[16] Because Judge Saunders’ order was made in the absence of M.S. and Mr. Gosh, I have jurisdiction to suspend it, vary it, or set it aside. That jurisdiction is conferred by Rule 20(4) of the Provincial Court (Family) Rules BC Reg 417/98, which provides:
A judge may change, suspend or terminate an order made in the absence of a person … if … there is good reason for changing, terminating or suspending the order, and … that person applies within a reasonable time and attaches to the application an affidavit stating the reason the person did not … attend ….
Analysis
[17] In this case, Judge Saunders’ order should be set aside, because:
a. The explanation tendered by Mr. Gosh for his omission to attend the family case conference is perfectly reasonable.
b. Because M.S. was not represented at the family case conference, a serious issue of child safety was addressed in the absence of one parent, and determined on the basis of unchallenged representations by the other. Quite apart from any question of fairness as between the parents, such an adjudication must be susceptible of reconsideration because of the primary importance of securing child safety.
c. On the authority of Lower vs Stasiuk, it seems clear that the order ought not to have been made.
[18] I have considered whether I should make that order myself or refer the matter back to Judge Saunders, and am guided in that consideration by the remarks of McIntyre, J in R vs Wilson 1983 CanLII 35 (SCC), [1983] 2 SCR 594 @ page 608. Judge Saunders is presently on holiday, and is not expected to return until mid-August. In that circumstance, and having regard to Judge MacCarthy’s previous role in this case, I think that the appropriate order is:
a. to set aside Judge Saunders’ order;
b. to direct that the parties arrange a date with the Judicial Case Manager for the hearing of an application by M.R. to vary Judge MacCarthy’s order.
In the circumstances, that application should be heard by Judge MacCarthy.
[19] M.R. should be aware that Judge MacCarthy will be able to vary the order which he made on January 17, 2014 if, and only if, M.R. is able to demonstrate a material change in circumstances since the order was made. The results of hair and urine testing might be a material change in circumstances. Successful completion of a substance-abuse treatment program might be another. Before bringing an application to vary Judge MacCarthy’s order, M.R. would be wise to: (i) think carefully about positive steps which he could take to assuage the legitimate concerns of M.S. and of the court about his substance abuse; (ii) follow up on one or more such steps.
July 14, 2014
____________________________
T Gouge, PCJ