IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[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:

[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:

[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:

[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.