



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



S.R. v. A.B.,









2021 BCCA 28




Date: 20210122

Docket: CA46467

Between:

S.R.

Respondent

(Claimant)

And

A.B.

Appellant

(Respondent)




Before:



The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Abrioux




On appeal from:  An
order of the Supreme Court of British Columbia, dated
September 25, 2019 ([
S.R.
]
v.
[
A.B.
], Vancouver
Docket E121370).




The Appellant, appearing in person

(via videoconference):



A.B.





Counsel for the Respondent

(via videoconference):



J.E. Roos





Place and Date of Hearing:



Vancouver, British
  Columbia

December 3, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 22, 2021









Written Reasons of the Court








Summary:

The parties have two
children together. By order dated September 25, 2019, the father was granted
limited supervised parenting time with his younger child. The order varied a
previous order granted in 2017, which had in turn varied a 2013 order. The 2013
order provided that the parties older child would reside with the father, and
the younger child with the mother during weekdays, and the children would
reside together with each parent on alternate weekends. This order was varied
in 2017 to provide that each child would reside exclusively with each parent:
the older child with the father and the younger child with the mother. That
arrangement was extended by a 2018 order. The father appeals the 2019 order on
the grounds that the judge erred in (1) finding, absent expert evidence, that
he had alienated his child; and (2) misapprehending evidence related to his
compliance with past orders. Prior to the hearing the Court, by memorandum,
requested submissions from the parties on the validity of the 2019 order. Held:
Appeal allowed. The 2018 order was made on the judges own motion after the
2017 order had expired. The judge therefore erred in law in basing his decision
on a variation of the 2017 order when the extant order was the 2013 order. The 2019
order is set aside with the exception of a term prohibiting the parents from
discussing the litigation or parenting arrangements with the younger son; the 2013
order governs parenting arrangements in respect of the younger son, the older
child having reached the age of majority.

Reasons for Judgment of the Court:

Introduction

[1]

This appeal arises from an order dated
September 25, 2019 (or the 2019 Order) which was made in the context of
a high-conflict and protracted matrimonial dispute. The judge granted the father
limited supervised parenting time with his youngest son A. who was then 11
years old. At the time the 2019 Order was made, the chambers judge had been
seized of the matter for almost two years and was well aware of the parties
circumstances.

[2]

The appellant father seeks to set aside the 2019 Order in favour of an
order for three months of equal parenting time and the preparation of a views
of the child report pursuant to s. 211 of the
Family Law Act
,

S.B.C.
2011, c. 25 [
FLA
]. He also seeks an order directing that his older
son B., who resides with him, be interviewed by Justice Gomery, who made a
temporary parenting order for the 2018 year-end holiday season when the judge
was unavailable to hear the application.

[3]

The hearing of this appeal took place approximately 15 months after the 2019
Order was made. Furthermore, the 2019 Order provides that the parties are
entitled to review the parenting arrangement in January 2021.

[4]

The father also seeks to adduce fresh evidence, being reports authored
after the 2019 Order was made and which relate to supervised access visits
which have occurred since then.

[5]

For the reasons that follow, we allow the appeal, although not on the
grounds raised by the father, which we need not address. Nor is it necessary to
address the application to adduce fresh evidence. Instead, as explained below, we
allow the appeal on the basis the judge erred in purporting to extend an
expired order, which made the parenting arrangements in the 2019 Order invalid.

Background

[6]

In light of our disposition of the
appeal it is necessary to set out the background in some detail.

[7]

The parties were married in 1993 and divorced in 2013. They have two
children, B. and A., born in 2001 and 2008 respectively.

[8]

On June 5, 2013, following a five-day
trial, Justice N. Smith ordered,
inter alia
, that the parties have
joint custody of the children, their residence to be with the mother from 6:00
p.m. on Sunday to 6:00 p.m. on Friday and with the father from 6:00 p.m. on
Friday until 6:00 p.m. on Sunday. This schedule was ordered to continue and not
be affected by statutory holidays. The childrens Christmas holidays, spring
breaks, and summer vacations were to be divided equally, with the children
living with each parent on alternate weeks (the Trial Order).

[9]

Approximately five months later, on November 6, 2013 the trial
judge varied the Trial Order since the older son B. had been running away from
the mothers home to be with the father. He ordered that B. live with the father
on weekdays, and that the children spend alternate weekends together with each
parent (the November 2013 Order).

[10]

Over the next five years, the parties returned frequently to court. As
of December 2018, the parties had appeared on 44 occasions. The majority of
those appearances are not relevant to this appeal, but at least two of those
appearances involved unsuccessful applications brought by the father to vary
A.s residence.

[11]

On the April 10, 2015, occasion, Justice Bowden commented that
the parenting arrangements have been determined by this court and the
applicant has not provided any evidence of a change in circumstances since the
previous orders were made. Since the application was dismissed on the same
basis as a previous application brought by the father, Bowden J. ordered
that the father not bring another application without leave of the court, or
until May 1, 2016. Efforts by the father to bring further applications
before that date were dismissed.

[12]

On September 27, 2017 the mother filed a notice of application in
which she sought compensatory parenting of A. and an order that she and B.
participate in family counselling. She also sought enforcement of prior court
orders and that the father pay a fine for his wrongful denial of parenting time
(the September 27, 2017 Application). Her notice of motion relied on eight
different affidavits she had filed in the course of the proceedings.

[13]

The September 27, 2017 Application contained the following
alternative claim for relief:

[A.]s change of Residence and School

Upon [A.]s request, and in order to minimize damage on [B.]
due to custody battles; if the Judge finds this to the childrens best
interest,

13. Order to change [A.]s
residence to reunite our children,

14. Order that during school time [A.]
spends every other weekend with the [mother] from Friday 7 PM to Sunday 7 PM

15. Order that during holiday, [A.]
spend time with each parent on 50-50 basis

16. Order that [the mother] can
visit both children [B.] and [A.], in the middle of the week, for few hours in
the evening

17. Order that the [father] provides his phone number to [the
mother] and provides the means so the [mother] can call [A.] on daily basis

[14]

It is significant that in his application response, the father consented
to the alternative relief concerning the change of A.s residence. He opposed
the other relief sought. His response said he would rely on six affidavits he
had filed in the proceedings.

[15]

On October 11, 2017, the September 27, 2017 Application came on for
hearing in regular Family Chambers before the judge, who had had no prior
involvement with the parties. Both parties were self-represented.

[16]

After listening to the parties for approximately 40 minutes, the judge
said he was going to change the court order. He then gave brief oral reasons
for judgment. In that regard he said:

[1]        THE COURT: What has happened here, folks, is that
your children have become pawns of a dispute which the two of you do not seem
to be able to get over. I am not sure what the whole basis of that is. Most
every couple that comes to court eventually gets to the stage where they let go
of the difficulties that happened in their relationship.

[2]        But it is telling to me that the [father] here,
the former husband, begins his presentation talking about what happened in the
1990s and how he lost money as a result, allegedly, of his former wife and her
aunts activities. It suggests to me that, sir, that you are not able to let
things go and that is clouding your judgment.

[3]        The unfortunate thing is that this is having a
dramatic effect on your children and everybody needs a timeout, and the timeout
is going to be this: [A.] is going to reside with his mother exclusively until
the 28th of February, 2018, and [B.] is going to reside with you exclusively
until the 28th of February, 2018. You are entitled to call [A.] every Tuesday
night at seven oclock and every Saturday night at seven oclock for a half an
hour conversation, during which time you and/or [B.] can speak to [A.]. On
Wednesdays at seven oclock and on Sundays at seven oclock, Maam, you are
entitled to call [B.] and speak to him.

[4]        [S.R.]: Yes.

[5]        THE COURT: And [A.] can speak to [B.] at that
time. That is what is going to happen between now and then because these kids
need a break. You both need a break. Running back and forth to court all the
time  30 applications since the trial in 2013  is craziness. You can spend
your entire time in court and ruin your childrens lives, or you face a
judgment like I have made today, which is both of you are going to have a
relationship with one child, which you can try to repair with that one child,
but other than that, you are only going to talk to the other child on the
telephone.

[6]
I am seizing myself of any court
applications, and there are to be no court applications.

[7]        Sir, is there some reason you are
smirking?

[8]        [The father]: May I talk, Your
Honour?

[9]        THE COURT: Just a second. I have
asked you a question. Is there some reason you are smirking when I said I am
seizing myself of applications?

[10]      [The father]: The [mothers]
seeking for order [
sic
] was for [A.] to be reunited with his brother,
and none of us agreed to separate the children like this.

[11]      THE COURT: Well, it does not matter what you have
agreed to, sir, because that is the order I have made. My job as a judge is to
hear from people and then make a decision that is in the best interests of
these kids, and what a nine-year-old and a 16-year-old do not need is constant
battles about going back and forth to a parent. So everybody is going to have a
timeout, and that is what I have ordered.

[12]      [The father]: May I sit?

[13]      THE COURT: Yes, please
do. Now, there are to be no applications until after the 28th of February,
2018, but after February 28th of 2018, both of you can file an application,
exchange it, get in front of me for a full day application and I will see what
happens from that point on, and if it is the case that things have calmed down,
then maybe I will try some reintegration of a parent with a child. But if you
are still verbally arguing or making things difficult for each other, then
maybe the regime will continue.

[17]

The order arising from the reasons is as follows:

THIS COURT ORDERS THAT,

1)

[A.] shall
reside with the [mother], exclusively, and [B.] shall reside with the [father],
exclusively until February 28 2018.

2)

The [father]
shall have telephone access with [A.] from 7pm on Tuesday and Saturday for half
hour and the [mother] shall have telephone access with [B.] at 7pm on Wednesday
and Sunday for half hour at which times the children may speak with each other
during the call.

3)

[The
judge] is seized of any further applications.

4)

No
applications are to be filed until after February 28 2018 and the applications
must be set before [the judge] for a full day.

5)

The
application filed by the [mother] on September 27 2017 is adjourned generally.

[The 2017 Order.]

[18]

The effect of the order was that A. would reside exclusively with
his mother while B. would live exclusively with his father. Contact between the
non-resident parent and their child would be limited to two telephone calls per
week. The two brothers would be separated from each other.

[19]

The 2017 Order was not appealed.
That is not surprising given that the parties were self-represented, the order
was interim in nature, could only be appealed with leave and in any event would
expire by its terms on February 28, 2018.

[20]

On March 26, 2018 the mother filed a notice of application in which
she sought,
inter alia
, an order that A. reside exclusively with her
while B. would reside exclusively with the father. That application was set for
April 6, 2018 before the judge. In advance of the hearing the father sent
a letter to the Registry requesting an adjournment because he had been
diagnosed with pneumonia. He provided a certificate of health status confirming
the diagnosis.

[21]

Notwithstanding the request for an
adjournment, the hearing proceeded on April 6, 2018 in the fathers absence.
The judge heard submissions from the mother for approximately one hour. At the
end of the hearing, on his own motion, he ordered that [t]he order pronounced 
on October 11, 2017, is hereby extended until further order of this
court. The judge also made certain orders respecting A.s passport, and
permitted the mother to travel with A. to the United States and outside Canada
on certain conditions. The judge also ordered that [the] outstanding issues in
this application are adjourned generally (the April 2018 Order).

[22]

The April 2018 Order was not appealed.

[23]

In December 2018, the father applied for parenting time with A. for the
upcoming seasonal holidays. The parties appeared before Justice Gomery on
December 19, 2018, since the judge was not available. At that time, Gomery J.
made an order which provided the father with
limited unsupervised holiday parenting time with A. (the December 2018 Order).
Justice Gomery found there was no evidence that A. did not wish to see or spend
time with his father and that there is no history of family violence and no
suggestion that [A.] will not be physically safe and secure in his fathers
care: [
S.R. v. A.B.
] (December 19, 2018), Vancouver Docket E121370
(B.C.S.C.) at para. 9.

[24]

In his reasons for judgment Justice
Gomery noted:

·

while the fathers frustration
with the current parenting arrangement is understandable, his attempts to get
his 10-year old son to take sides were inappropriate and not in [A.s] best
interests: at para. 13; and

·

there is some justification for
the [mother]s concern that A. would be subjected to pressure from his father
and brother if this application is allowed, and there would be at least some
risk to A.s emotional health: at para. 14.

[25]

Justice Gomerys reasons also provided:

[18]      [The mother] has taken the view that [the judges]
order prevents [the father] or [B.] from coming into her neighbourhood or
showing up where [A.] is, and she has said as much in correspondence to [the
father].

[19]      The order does not say that. [The mother] directed
me to paragraph 6 of the order made by Justice Smith on November 6, 2013.
I think that Mr. Justice Smiths entire order was replaced by the order of
[the judge], and even if paragraph 6 of the earlier order somehow survived, it
only limited being in the vicinity of the other partys residence. [The
mothers] aggressive interpretation of [the judges] order is incorrect.

[20]      I am troubled by [the mothers] decision to record
all of [A.]s telephone conversations with his father. In my view, [A.] and his
father should be afforded some privacy in their relationship.

[21]      Taking all this into account, I am not persuaded
that [A.]s emotional health is necessarily at risk if he spends time with his
father and his brother over Christmas. There is some risk to his emotional
health either way. He is emotionally bonded with both parents and he needs
contact with both of them at this important time of the year.

[22]      I have considered [the mothers] alternative
submission, that access by [the father] take place under supervision. I think
that the risk of inappropriate conduct by [the father] or [B.] during the visit
can be addressed by the following orders:

(a)        The parties will not:

1.         Question [A.] about the
other parent or time spent with the other parent beyond simple conversational
questions.

2.         Discuss with [A.] this
court proceeding or any inappropriate court or legal matters.

3.         Blame, criticize or
disparage the other parent to [A.]; or

4.         Encourage [A.] to seek
any change in the parenting arrangements that have been, are, or will be
ordered by the Court.

(b)        [The father] will not
encourage or permit [B.] to speak to [A.] in any way he would not himself be
permitted under this order.

[23]      On this basis, I think that an overnight stay is in
order and the length of the visit should be the same as was historically the
case under the order of Justice Smith.

[24]      Unless there is some reason to change the dates, I
would repeat Justice Smiths order, that [A.] should be with the [father], from
10:00 a.m. on December 25 to 7:00 p.m. on December 30. I order that the pickup
arrangements be as set out in paragraph 1(d) of the notice of application.

[25]      My order is only for
this Christmas period. The parenting over future holidays will be addressed by [the
judge].

[26]

The next day, that is December 20, 2018, the father filed an
application in which he sought additional unsupervised parenting time with A.
to include every other weekend, and Tuesdays and Wednesdays after school on
alternating weeks. This is the application which was ultimately heard in July
2019 and which resulted in the 2019 Order under appeal. The notice of application
does not allege any material change in circumstances arising since the 2017
Order. Instead, Part 2: Factual Basis focused on prior orders of
the court, evidence that was before the judge when he made the 2017 Order, and
the fathers alleged breaches of that order.

[27]

A week later, on December 27,
2018, the mother filed an application seeking preparation of a views of the child
report to obtain A.s views regarding future parenting arrangements, and requesting
that the 2017 Order, as extended on April 6, 2018, be continued until the
report was prepared. Alternatively, the mother sought an order that A. have
supervised visits with the father one weekend per month, and that the father cover
the cost of those visits.

[28]

The mother also filed a further application on June 26, 2019,
seeking an order that the father obtain leave of the court before bringing any
further applications and that she be entitled to travel outside of Canada with
A.

[29]

That day, the mother also filed her materials responding to the
appellants application for additional parenting time. In those materials, she
raised concerns about the fathers behaviour towards A., including that he had,
contrary to Justice Gomerys order, pressed A. during the 2018 holiday
parenting time with respect to whom he wanted to live with.

[30]

These three applications initially came on for hearing before the judge
on July 4, 2019. Since the appellant had recently received the mothers materials,
the hearing was set over to July 25, 2019 so that the father would have an
opportunity to provide a full response. In the course of submissions, the judge
indicated on several occasions that he had made findings of fact at the time of
the October 11, 2017 hearing and the onus on this application was on the father
to show a material change of circumstances since that date.

[31]

The parties re-appeared before the judge on July 25, 2019. The
judge acceded to the fathers counsels request that it would be appropriate
for him to speak directly with A., then 11 years old. He would give reasons for
judgment thereafter. That conversation occurred on August 21, 2019.

The Reasons

[32]

On September 25, 2019, the
judge issued his unreported reasons for judgment, which in part refer to the
circumstances of his prior orders: [
S.R. v. A.B.
] (September 25, 2019),
Vancouver E121370 (B.C.S.C.) (the Reasons). He explained that at the time of
the 2017 Order, he had concluded that there had been attempts at, for a lack
of a better term, alienation or undue influence exerted by  [the father], and
the elder child, [B.]  in regards to [A.] : at para. 4. He noted that the
fathers conduct had included over-holding A., not returning him at the agreed
times, expressing statements to [him] of a negative nature about [the mother]
and encouraging  [B.] to do the same: at para. 5. He regarded B. as
having already been virtually alienated towards the mother under the fathers
influence.

[33]

The judge also made certain comments about his conversation with A.:

·

A. appeared comfortable ... [and] that in terms of a level of
comfort, he was able to smile and engage and was not outwardly distressed;

·

the conversation for the most part confirmed the version of
events attested to by the mother but denied by the father. Specifically, A.
volunteered that during his visit with his father at Christmas, he felt that he
was being pressured about changing his living arrangements and, despite the
express words of the order of Mr. Justice Gomery, his father brought up
the topic of where he should live;

·

A. expressed a lack of comfort when his father and B. showed up
unexpectedly at A.s sporting and other events. In this regard, A. recited
additional incidents of contact that were not deposed to by the [ mother]; and

·

A. expressed that he loves his dad but desires not to see him
because of the stress associated with contact.

[34]

On several occasions in the Reasons, the judge noted his concern that
the father could not abide by court orders but he also recognized that a child having
no personal contact with a parent generally may be unhealthy in the long‑term.

[35]

The judge summarized the situation as follows:

[23]      So again, I have a
father who cannot abide by court orders, but I know that having no personal
contact with a parent generally is not a good thing for a child, and absent
threats of physical violence directed at the child, non-contact is not healthy
in the long term. As indicated, a short-term timeout can sometimes be effective
to resolve the problems. That did not happen here and that did not work in
resolving the problems.

[36]

Accordingly, the judge:

·

dismissed the fathers application for specific parenting time;

·

ordered that the telephone contact previously ordered continue;
and

·

ordered that the father be permitted supervised access with A.
every second Saturday of each month for four hours, with the appellant to bear
the costs of the professional supervision agency, essentially as sought by the mother
in her application filed December 27.

[37]

The judge also reaffirmed the prior order
that neither parent discuss the litigation, residential arrangements, or access
arrangements with A., (at para. 4) with the order also providing that the
parties were 
entitled to review [the] parenting arrangement in January 2021
by way of application.

Issues on Appeal

[38]

In his amended factum, the father submits that the judge erred by:

a)

finding, absent
expert evidence, that he had alienated A.; and

b)

misapprehending
evidence respecting his compliance with prior orders.

[39]

The mothers position as set out in her amended factum is that the judge
made neither an error in principle nor error in law, nor did he significantly
misapprehend the evidence in dismissing the fathers application to vary the
October 17, 2017 order.

[40]

In light of our conclusion on an additional issue as explained below, it
is unnecessary to address the issues advanced by the father. We turn to the
additional issue now.

Additional Issue on Appeal

[41]

On November 30, 2020, the Court, by memorandum (the Memorandum),
requested the parties submissions at the hearing of the appeal as to the
validity of the order under appeal, being the September 25, 2019 order in
that:

·

the order of September 25, 2019, varied the order of
October 11, 2017;

·

the October 11, 2017 order in turn purported to be a
variation of the order of Justice N. Smith dated November 6,
2013;

·

however, the October 11, 2017 order expired on
February 28, 2018; and

·

despite the expiry of the October 11, 2017 order, the
judge purported to extend that order on April 6, 2018, until further
order of the court.

Accordingly, the question is: could the judge on his own
motion extend an expired order?

Discussion

[42]

Neither the notice of application
filed December 20, 2018 nor the Reasons identify the parenting order which
the father sought to be varied. The parties agreed, however, that the order in
question was the 2017 Order which provided that A. reside exclusively with the mother
and B. reside exclusively with the father, with the children each having
telephone access with their non-resident parent.

[43]

We are of the view that the 2017
Order varied the Trial Order as varied by the November 2013 Order. Accordingly,
we disagree with Gomery J.s view expressed at para. 19 of the December 2018
Reasons that 
Mr. Justice Smiths entire order was replaced by the
order of [the judge].

[44]

In that regard, t
he Trial Order provided
that [p]ursuant to the
Divorce Act
the [mother] and the [father] shall
have joint custody of the children, with the parenting arrangements ordered
pursuant to the
FLA
. A prerequisite to variation under either statute
requires proof of a material change of circumstances:
Williamson v.
Williamson
, 2016 BCCA 87 at paras. 2934.

[45]

As stated earlier, however, this appeal need not be decided on
the grounds raised or arguments made by the parties in their factums, and in
particular on whether a material change in circumstances had been established.

[46]

In response to the Memorandum,
counsel for the respondent referred the Court to
Sutherland v. Reeves
, 2014
BCCA 222 and
Rogers v. Taylor
, 2015 BCCA 244.

[47]

It was the mothers submission
that the 2017 Order, when considered in its proper context, did not expire on
February 28, 2018. She relies on
Sutherland
and the statement of
the Chief Justice:

[31]

court
orders are not interpreted in a vacuum. This Court has recently described the
correct approach to the interpretation of court orders (
Yu v. Jordan
,
2012 BCCA 367 at para. 53, Smith J.A.):

[53]      In my view, the
interpretation of a court order is not governed by the subjective views of one
or more of the parties as to its meaning after the order is made. Rather an
order, whether by consent or awarded in an adjudicated disposition, is a
decision of the court. As such, it is the court, not the parties, that
determines the meaning of its order. In my view,
the correct approach to
interpreting the provisions of a court order is to examine the pleadings of the
action in which it is made, the language of the order itself, and the circumstances
in which the order was granted
.

[Emphasis added in original.]

[48]

The mothers position is that it was not objectively reasonable to
conclude that on October 11, 2017 the judge intended that as of
March 1, 2018 the parenting arrangements would revert to the November 2013
Order or that the parties would be left in limbo. Rather his intention was
that the 2017 Order would not expire and he would at a later time decide
whether it should be varied or extended. She argues that both on October 17,
2017 and April 6, 2018, the judge considered the best interests of the
children and was entitled to proceed as he did even without submissions of either
party and in the appellants absence.

[49]

We do not accept this submission for several reasons and
dispose of the appeal on the basis that the 2017 Order
expired on February 28, 2018, at which point it became ineffective: see
Burbank
v. Garbutt,
2012 BCSC 190 at para. 28;
Maxwells Plumbing and
Heating Ltd. v. British Columbia,
2017 BCCA 285 at para. 2.
Accordingly, in September 2019 the judge erred in law by basing his decision on
a variation of the 2017 Order when the extant parenting order was in fact the
Trial Order as varied in November 2013.

[50]

First of all, the foundation for the 2019 Order under appeal is the 2017
Order which was then purportedly extended by the judge on his own motion on
April 6, 2018. Although the 2017 Order was not appealed, it is our view,
for reasons we shall explain, that it was problematic for a number of reasons.

[51]

Rogers
involved an appeal of a spousal support order which was
made without an application or evidence. Justice Bennett, for the Court, in
granting the appeal explained:

[12]

Generally,
a court should not make an order on an matter that was not before it (
Naderi
v. Naderi
, 2012 BCCA 16 at para. 22 and
D.W.H. v D.J.R.
, 2013 ABCA
240 at para. 42). Sometimes such orders will arise during the course of an
application, and depending on the circumstances, may not be wrong. Here,
however, neither party was heard on the application, nor was there was any
evidence upon which to base the order. As a result, an unfairness has occurred
with respect to Mr. Rogers.

See also
Liapis v. Keshow
, 2020
BCCA 28 at para. 15.

[52]

While the circumstances here were somewhat different than in
Rogers,
the reasoning nonetheless applies. In October 2017, neither party requested the
time out imposed by the judge and that order was in fact contrary to the
alternative relief sought by the mother that A.s primary residence change to
be with his father and to which he consented. The 2017 Order, which was a
variation of the November 2013 Order, was also made without any reference or
analysis in the judges reasons to the requirement of a material change in
circumstances.

[53]

Accordingly, both parties were prejudiced at that time.

[54]

This prejudice or unfairness was compounded when on April 6, 2018,
the order was extended on the judges own motion and in the fathers absence, due
to medical reasons that were not in dispute.

[55]

In his Reasons, the judge also referred to his decision of October 11,
2017 and explained certain of the findings he had made that day. The difficulty
is that the judge made no findings in his October 11, 2017 reasons. In our view,
this further undermines the basis for that order and was unfair to the parties,
including as to their ability to consider an application to seek leave to
appeal what was intended to be an interim parenting order.

[56]

We add that the judge appears to have implicitly accepted certain of the
allegations made by the mother that the fathers conduct had breached the 2017
Order, for example, the view that his order(s) prevented the father and B. from
visiting the neighbourhood where A. and his mother resided. Justice Gomery had
not accepted this interpretation of the judges order in December 2018: December
2018 Reasons at para. 19.

[57]

In any event, in our view the
correct interpretation of the October 11, 2017 order is that the time
out expired on February 28, 2018 and it was for the parties to file any
applications or reset any adjourned application after that date at which time:

if you are still verbally
arguing or making things difficult for each other, then maybe the regime will
continue.

[58]

When we consider the brief reasons for judgment of October 11, 2017,
it may well be that the judge did not appreciate what we consider to be the
legal effect of the order; that is, upon a further application after
February 28, 2018, the extant orders would be the Trial Order as varied by
the November 2013 Order. Those were the extant orders at the time of the October
2017 hearing.

[59]

Accordingly, we conclude that the appeal should be allowed and the order
of September 25, 2019 should be set aside in its entirety with the exception of
para. 4 which pertains to the prohibition on both parents from discussing
the litigation or parenting arrangements with A. Ongoing parenting arrangements
in relation to A., (B. having now reached the age of majority), are governed by
the Trial Order as varied by the November 2013 Order. Pursuant to the terms of
that order, A. resides with his mother during the week and spends alternate
weekends with his father. Those weekend visits should commence January 29,
2021. Either party is at liberty to apply to vary those parenting arrangements.
If either party so applies, then the father will presumably file the evidence
he considers to be of assistance to his position.

[60]

We add that, while allowing the appeal, we are mindful of A.s
statements to his mother and the judge that in late December 2018, when
exercising unsupervised parenting time, the father breached Gomery J.s
order by attempting to pressure A. about the parenting arrangements.

[61]

This allegation is vehemently denied by the father. If true, however, while
not a permissible excuse, it occurred in the context of a father who had been denied
in‑person parenting time with his son from October 11, 2017 to late
December, 2018.

[62]

There have been allegations of misconduct in relation to both parties
and we note the concerns which we consider were appropriately raised by Gomery J.
regarding the respondent recording A.s conversations with his father.

[63]

Suffice it to say that the parties must comply with all court orders
including para. 4 of the September 2019 Order.

The Judges Decision to Declare Himself Seized of Further Applications in This
Proceeding

[64]

On October 11, 2017, at the conclusion of the application which is at
the core of this appeal, the judge made an order that he was seized of any
further applications in this proceeding. He repeated this order on September
25, 2019.

[65]

In this Court, the father submitted that any further hearings in the
Supreme Court should be before a different judge. Essentially his position is
that he was not provided with an opportunity to be heard before the 2017 Order
was made and that the interactions between himself and the judge that day and
on subsequent occasions show that he has not been dealt with fairly.

[66]

This Court has previously stated that judges may declare themselves seized
whenever it is in the interests of justice to do so:
Dhaliwal v. Beloud,
[1996]
B.C.J. No. 1459 (C.A.) at para. 25 [
Dhaliwal
].

[67]

The practice of a judge seizing themselves is common in high-conflict
family cases, where it offers several practical advantages. As Justice Rowles
observed in
D.M.M. v. T.B.M.,
2011 YKCA 8:

[4]        It may be helpful to
observe at the outset that it is not unusual for a judge to become seized of
proceedings in parental alienation or other high conflict family law cases.
Such a practice was commented upon by Martinson J. in
A.A. v. S.N.A.,
2009
BCSC 387 at para. 81. In One Case-One Specialized Judge: Why courts have an
obligation to manage alienation and other high-conflict cases, (2010) 48
Family Court Review 180, she elaborated on the rationalization for adopting
such a practice.

[68]

Justice Martinson explained in
A.A. v. S.N.A.,
2009 BCSC 387, that
it is imperative in high conflict family cases generally  that one member of
the Court take charge of the case. This is commonly referred to as becoming
seized. Justice Martinson explained:

[78]      The
reasons for doing so for all cases are obvious. The judge will be familiar with
the case so the litigants do not have to explain the situation over and over
again. It avoids judge shopping to try to get a better result. It prevents
inconsistent approaches. It saves legal and other costs. There will be times in
dealing with some cases when it is not convenient or practical to do so.

[69]

Nonetheless, becoming seized carries risks. As the Court explained in
N.R.G.
v. G.R.G.,
2017 BCCA 407 [
N.R.G.
]:

[
60
]      There
is much wisdom in Madam Justice Martinsons observation that a family unit may
benefit from a judge seizing him or herself of a case. That does not mean,
however, that the seized judge should remain seized to the last application
filed. The very fact the judge is seized of the case increases the opportunity
to develop an impermissible point of view about the case or the parties, and
emphasizes the vital requirement of assiduous objectivity.
All trial judges
will know there may come a time in the conduct of a case when the judge says,
I have done my best and should pass this to fresh eyes
.

[
Emphasis added.]

[70]

This then raises the question as to whether this Court has jurisdiction
to review a decision by a judge to be seized of a matter. In
Dhaliwal,
Justice
Cummings stated:

[27]      Whether or not a judge
agrees to be seized of a matter is a decision which lies within the ambit of
that judges discretion. An appeal court should only interfere if a judge was
clearly wrong in the exercise of that discretion

[71]

In
Dhaliwal,
the Court declined to intervene on the
grounds that the judges decision was correct: at para. 27. In
Insurance
Corp. of British Columbia v. Hoang,
2002 BCCA 714 (Chambers), Justice Smith
noted, in denying leave to appeal a decision to become seized, that the Court
has never interfered with the manner in which the Supreme Court conducts its
business: at para. 6. In
The Owners, Strata Plan K855 v. Big White
Mountain Mart Ltd.,
2014 BCCA 397 [
Strata Plan K855
], the Court
dismissed the appellants request to set aside a decision where the judge had
become seized and similarly stated that [o]rders or directions by which a
judge seizes him or herself are inherently matters of trial management to which
this Court owes high deference: at para. 34.

[72]

These authorities all predate
N.R.G
. which examined the
issue in some detail.
In that case, the Court considered the
jurisdictional issue as to whether a judges decision to become seized is an
order for the purposes of s. 6 of the
Court of Appeal Act,
R.S.B.C.
1996, c. 77 and concluded that it is not: at para. 62. As the Court
explained:

[63]      The determination that the judge is seized of the
case is recited in two documents entitled Final Order, one from the trial and
the other from the review and reconsideration. Notwithstanding this title, we
respectfully suggest that
the determination is more in the nature of a
procedural direction or instruction that applications in the proceedings should
be set before himit does not address matters of substance between the parties
or issues raised in the pleadings. Such a direction is likely not an order or
decision that is within the jurisdiction given us by the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77: see
Cambie Surgeries Corporation v. British
Columbia (Attorney General)
, 2017 BCCA 287;
Director of Forfeiture v.
Lloydsmith
, 2014 BCCA 72. As we note in
Lloydsmith
, it happens that
matters of the trial courts management sometimes are included in documents
entitled Order that do not bear that character.

[Emphasis added.]

[73]

In addition to these comments, the Court noted that it would decline in
any event to interfere in the administration of the Supreme Court of British
Columbia in the manner sought and defer the question to that court: at
para. 64.

[74]

This does not leave parties without recourse. As explained in
N.R.G.,
also at para. 64,

it remains open to the parties to address
[their] complaint[s]either to the judge or the Chief Justice. Furthermore,
complaints about a judges decision to remain seized have often overlapped with
concerns which relate to the judges impartiality: see
Lee v. Lee,
[1990]
B.C.J. No. 2277 (C.A.)
; Strata Plan K855
at para. 34
;
and
N.R.G.
at paras. 5758. Where these rise to the level of a
reasonable apprehension of bias, the remedy will be the disqualification of the
judge seized:
Wewaykum Indian Band v. Canada,
2003 SCC 45 at para. 62;
and
N.R.G.
at paras. 6582.

[75]

We have reviewed the transcripts of the various substantive proceedings
before the judge. In light of:

·

certain of the interactions between the judge and the father;

·

the fact the 2017 Order was made without submissions from the
parties and the judge decided not to hear from the father after it was made,
with the resulting unfairness to which we have referred;

·

the April 2018 Order was made in the absence of the father; and

·

the effect of the 2017, April 2018 and 2019 Orders, being that
the father has had no in-person parenting time with A. from October 2017 to now
with the exception of the brief period of unsupervised parenting time in
December 2018 and supervised parenting time since September 2019,

we would respectfully suggest that consideration be given as
to whether any further application by the parties be passed to fresh eyes.

Disposition

[76]

We allow the appeal and set aside
the September 2019 Order with the exception of para. 4 as described above.

[77]

In light of our conclusion that
the 2017 Order was unfair to both parties, and that order formed the basis of
the April 2018 and 2019 Orders, we make no order as to costs in this Court or
in the court below.

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Goepel

The Honourable
Mr. Justice Abrioux


