



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



D.L.T. v. K.K.M.
,









2019 BCCA 13




Date: 20190122

Docket: CA45441

Between:

D.L.T.

Appellant

(Claimant)

And

K.K.M.

Respondent

(Respondent)




Before:



The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris




On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 29, 2018 (
D.L.T. v. K.K.M.
, 2018 BCSC 1133, Vancouver Docket
E131162).

Oral Reasons for Judgment




The Appellant, appearing in person:



D.L.T.





The Respondent, appearing in person:



K.K.M.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 22, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 22, 2019








Summary:

The appellant appeals three
aspects of an order made by a chambers judge in high-conflict family
litigation.  Held:  Appeal dismissed.  In dismissing the appellants
application for the respondent to be restricted to supervised parenting time
with their daughter for at least three months, the judge did not err in any of the
respects asserted by the appellant.  The appellant did not demonstrate a basis
upon which this Court can interfere with the judges exercise of discretion in
allocating the costs of the expert who prepared a report under s. 211 of the
Family Law Act.  The judge did not err in refusing the appellants application
that he be provided with written progress reports from the person who would be
providing therapy to the respondent.

[1]

TYSOE J.A.
:  The appellant appeals three aspects of a 28-paragraph
order made by a chambers judge on June 29, 2018 in high-conflict family
litigation.  Much of the litigation has centred around the parties seven-year-old
daughter and, in particular, the respondents belief that the appellant
presented a risk to their daughter and the appellants concern about parental
alienation.

[2]

The matter went to trial in 2015 with Justice Gray presiding.  She
issued reasons for judgment indexed as 2015 BCSC 1771, but the conflict continued. 
Justice Gray continued to hear applications, and she made several
post-trial orders.

[3]

In late 2016, the respondent expressed concern, on the basis of what she
was told by the parties daughter, that the appellant was sexually abusing the
daughter.  The respondent did not allow the appellant the parenting time to
which he was entitled, and the appellant applied in early December 2016 for his
parenting time to be reinstated.  Justice Gray reinstated the appellants
parenting time but directed that there be a further hearing to consider an
investigation into what was troubling the daughter.

[4]

On January 24, 2017, Gray J. heard submissions with respect to who
should be appointed to conduct an assessment under s. 211 of the
Family
Law Act
, S.B.C. 2011, c. 25.  The appellant wanted the assessment
to be conducted by Dr. Krywaniuk who had prepared a report that was
introduced as evidence in the 2015 trial and who estimated that his additional
fees would be up to $5,000.  The respondent wanted a psychologist or one of
three psychiatrists to conduct the assessment.  The psychologist, Mr. Colby,
was in a position to begin work shortly and the respondent said she was
prepared to pay all of his costs, which were estimated to be $15,000.  Justice Gray
appointed Mr. Colby to conduct the assessment and ordered that the
respondent was to pay his fees and was not to have liberty to apply for
contribution by the appellant.  At the time of Gray J.s order, neither
party was employed.

[5]

The order made by Gray J. on January 24, 2017 was incorporated into
an omnibus order made by her on March 1, 2017 in which all continuing orders
were consolidated into one order for convenience.

[6]

The respondent paid a retainer of $7,500 to Mr. Colby.  On the
basis that she had no further available funds to pay Mr. Colby, the
respondent applied to suspend the assessment.  The appellant responded to the
application by requesting that he be permitted to pay the remaining portion of
the $15,000 fee then estimated by Mr. Colby.  On June 6, 2017, Justice
Saunders dismissed the respondents application but varied Gray J.s order
with respect to the payment of the costs of Mr. Colbys report.  Justice
Saunders order was settled by Registrar Nielsen but an appeal from the
settlement of the order was allowed in part by Justice Skolrood.

[7]

The end result of the settled order was that Gray J.s order was
varied to the extent that the respondent was relieved of the obligation to pay
for the entirety of the costs of Mr. Colbys report and that the first
$15,000 of the costs were to be divided on a 50/50 basis.  Justice Saunders
order also stated that the respondent was at liberty to have the issue of
liability for the entirety of the cost of [M]r. Colbys report re-visited
by the Court upon determination of the consequences respecting parenting that
arise from [M]r. Colbys report based on the Respondent showing evidence
of a material change in her circumstances since the said Order of Madam Justice
Gray.  In addition to allowing the appeal from the settlement of Saunders J.s
order, Skolrood J.s order also provided that the appellant was to pay an
additional $4,500 towards the costs to bring the total retainer to $20,000
and that [t]his does not vary Madam Justice Grays order concerning
payment for the s. 211 report and the parties are at liberty to apply at a
later date for a reallocation of the costs.

[8]

The s. 211 assessment report was issued on March 21, 2018.  Mr. Colby
found that the appellant did not present a risk to the parties daughter.  He
also found that there appeared to be a close bond between the appellant and his
daughter, and that there did not appear to be any negation of the appellant by
his daughter.  Mr. Colby warned, however, that there was risk of a
negative effect on the relationship between the appellant and the parties
daughter if she becomes aware as she matures of her mothers extreme wariness
of the appellants engagement with the daughter.

[9]

Mr. Colby made a number of recommendations, including a shared
parenting arrangement, shared guardianship and therapy for the respondent.  He
made the recommendations on the basis that the respondent accepted the finding
the appellant did not present a risk to their daughter and that she does not
engage further in making allegations without concrete support.  He cautioned
that, if the respondent continued in a manner that undermined the relationship
between the appellant and their daughter, consideration should be made for
supervised parenting time being the sole basis of [the respondents]
interactions with her daughter.

[10]

Following receipt of Mr. Colbys report, the appellant made an
application for an order varying the omnibus order dated March 1, 2017 in
numerous respects and for several additional orders.  The chambers judge who
heard the application made a comprehensive order, the relevant aspects of which
are as follows:

(a) he
dismissed the appellants application that the respondents parenting time with
their daughter be restricted to fully supervised access for a period of at
least three months, and he ordered an equal parenting arrangement;

(b) he
declined to accede to the appellants application for reimbursement by the
respondent of the $12,500 the appellant paid to Mr. Colby, and he ordered
that the costs of the report be divided equally, so that the respondent was to
pay $2,000 to the appellant (it appears that the respondent may have paid an
additional $1,000 of the costs in addition to the initial $7,500 retainer); and

(c) he
directed that the respondent have an appointment with a registered psychologist
or psychiatrist at least once a month but he declined to make the direction
requested by the appellant that the therapist provide the appellant with
written progress reports every 30 days (although he did direct the respondent to
advise the appellant of the date of commencement of her therapy appointments
and if she stopped her therapy).

[11]

At the time of the hearing of the application, both parties had become
employed.  The appellant was earning approximately $85,000 and the respondent
was receiving a salary and benefits of approximately $43,000.

[12]

The appellant put into evidence a surreptitious recording he made of a
telephone conversation between the respondent and their daughter on April 28,
2018.  In the recording, the daughter said she told the appellant she did not
want him to change the parenting schedule, and the respondent told her that the
appellant was always going to try and control her but she was getting older and
could make decisions for herself.  The respondent also told her daughter to
keep telling the appellant that the respondent was not working because the guy
is crazy.  He is taking me to court again.

[13]

The appellant also put into evidence a recording of a voicemail message
the respondent left on the telephone of the paternal grandparents of the
respondents other daughter, who is approximately four years older than the
parties daughter.  In the message, the respondent said she was aware that her
older daughters grandparents were going to watch the parties daughter ride
horses and were going out to dinner with her.  The respondent made a comment
about going to court and asked the grandparents to leave the parties daughter
alone.

[14]

At the hearing of the application, counsel for the respondent informed
the chambers judge that the respondent accepted that the appellant is not a
threat to their daughter.

[15]

In his reasons for judgment (indexed as 2018 BCSC 1133), the chambers
judge discussed the recorded telephone conversation between the respondent and
her daughter.  He commented that it was inappropriate for the respondent to
have encouraged her daughter to make her own decisions.  He also commented that
the respondents persistent encouragement of her daughter to insist on the
current parenting schedule and to withhold information from the appellant
appeared to be manipulative and contrary to the best interests of the
daughter.  However, he concluded that the respondents behaviour did not
justify the rather Draconian order of supervised access and that it would not
be in the daughters best interests to make so startling a change in her
circumstances.  The judge proceeded to make the order for an equal parenting
schedule.

[16]

In dealing with the costs of Mr. Colbys report, the chambers judge
wondered about the basis upon which Saunders J. varied Gray J.s
order, but observed that it was settled by the registrar and entered in the
court records.  The judge made no mention of the appeal heard by Skolrood J.
or to the additional order made by him.  He stated that the current situation
was quite different from that contemplated by Gray J. because the
appellant had paid most of Mr. Colbys fees, and he noted that the
appellant was earning double what the respondent was earning.  In those
circumstances, the judge considered it appropriate for the fees to be shared
equally, and ordered the respondent to pay $2,000 to the appellant.

[17]

In ordering that the respondent undergo therapy, the chambers judge
stated that it would intrude too far into the respondents privacy rights if he
acceded to the appellants request for written progress reports to be sent to
him every 30 days.  After ordering that the appellant be advised of the
commencement of the therapy appointments and any cessation of the therapy, the
judge stated that, if the appellant felt the need for more information, he was
to pursue it through the respondents counsel or through the court.  The judge
did order that the respondent was to advise the appellant, through the
respondents lawyer, if she stops her therapy.

Discussion

[18]

The appellant challenges the judges orders respecting the supervised
parenting time, the costs of Mr. Colbys report and the provision of
progress reports by the respondents therapist.

[19]

The decisions of the chambers judge under appeal were discretionary in
nature.  An appellate court will interfere with a discretionary decision only
if the judge misdirected himself or herself or reached a decision that is so
clearly wrong that it amounts to an injustice or the judge gave no or
insufficient weight to relevant considerations: see
Penner v. Niagara
(Regional Police Services Board)
, 2013 SCC 19 at para. 27.

a)
Failure to Order Supervised Parenting Time

[20]

The appellant submits the chambers judge made five errors in dismissing
his application for the respondent to be restricted to supervised parenting
time for at least three months.  He says the judge failed to give paramountcy
to his daughters long-term interests, failed to adequately consider the risk
of family violence, failed to consider relevant cases dealing with parental
alienation, incorrectly interpreted Mr. Colbys report and erred by
failing to listen to the audio recording evidence.

[21]

In my opinion, the judge did not commit any of these alleged errors.  In
declining to make the order, the judge specifically considered the best
interests of the child, and I am not persuaded that he erred in failing to give
effect to her best interests.

[22]

The so-called risk of violence relied upon by the appellant was the
respondents attempt to alienate the parties daughter from the grandparents of
the respondents other daughter, incidents which he considers to be emotional
harassment of himself, and the respondents past denial of his parenting time. 
None of these events relate to the interaction between the respondent and her
daughter, and I fail to see how these types of incidents would warrant
supervised parenting time.

[23]

I am not persuaded that the judge improperly overlooked the case
authorities dealing with parental alienation.  Mr. Colby found that there
appeared to be a close bond between the parties daughter and the appellant,
and simply cautioned that there could be a risk of alienation in the future. 
The judge did not consider this potential future risk to warrant the
supervision sought by the appellant, and his decision is entitled to deference
in the absence of a demonstration that he gave insufficient weight to the risk.

[24]

The appellant has not established that the judge misinterpreted Mr. Colbys
report.  He says the judge placed too much weight on the issue of whether the
respondent continued to believe he presented a risk to their daughter and did
not understand that the recommendation for supervised parenting was based on
the totality of the respondents behaviour.  However, the appellant does not
point to anything stated by the judge to illustrate that he misinterpreted Mr. Colbys
report.  The judge did not dismiss the appellants application solely on the
basis that the respondent accepted that the appellant does not pose a risk to
their daughter.  He considered the respondents additional behaviour and
concluded that the order sought by the appellant was not justified.

[25]

Finally on this aspect of the appeal, the judge did not err in
exercising his discretion to rely on the transcripts of the audio recordings
without listening to the recordings.  There is no requirement in law that the
listening of audio recordings must always be preferred to the reading of the
transcripts of the recordings.  I have listened to the recordings and there is
nothing unusual about the vocal context or tone that made the transcripts
misleading or deficient.  There is no reason to believe that the judges
decision would have been different had he listened to the recordings.

b)
Costs of the Colby Report

[26]

The appellant submits the chambers judge erred in two respects when he
dismissed the appellants application for an order that the respondent
reimburse him for the portion of Mr. Colbys costs paid by him.  He says
the judge incorrectly applied the test of material change of circumstances and
failed to give sufficient weight to the consequences arising from Mr. Colbys
report.

[27]

As the appellant conceded in his factum, the order made by Saunders J.
(as ultimately settled by Skolrood J.) was not appealed.  This presents
two insurmountable obstacles for the appellant.  First, the order of Gray J.
was varied to change the requirement for the respondent to pay all of the costs
for Mr. Colbys assessment and to substitute a requirement that the parties
were to each pay half of the first $15,000 of the costs.  Second, Saunders J.
gave the respondent, not the appellant, liberty to have the issue of liability
for the costs of the assessment re-visited.  The effect of Saunders J.s
order is that the appellant is not entitled to apply for a reallocation of the
first $15,000 of the costs.

[28]

It is not surprising that the appellant did not appeal Saunders J.s
order.  In contrast to the situation before Gray J., when the respondent
wanted the assessment to be conducted by Mr. Colby, the respondent wanted
the assessment to be suspended.  On the other hand, although initially
resistant to the appointment of Mr. Colby to conduct the assessment, the
appellant did want him to complete the assessment and volunteered to pay the
second half of the $15,000 retainer.

[29]

In the result, the authority to reallocate any of the costs paid to Mr. Colby
on the appellants application was contained in the additional order made by
Skolrood J., not the order made by Saunders J.  The appellants
grounds of appeal on this issue are misconceived because they are based on the
wording of Saunders J.s order (i.e., material change in her
circumstances and determination of the consequences respecting parenting that
arise from [M]r. Colbys report), but the authority to reallocate any of
the costs upon application by the appellant is not contained in Saunders J.s
order.

[30]

In his factum, the appellant concedes that the sentence in Skolrood J.s
order giving the parties liberty to apply for a reallocation of the costs
refers only to the $4,500 cost overrun that he agreed to pay in order to have
the report completed. The effect of the chambers judges order was to
reallocate this cost in an approximately equal fashion.  That was not contrary
to Gray J.s order because her order was varied by Saunders J. to
relieve the respondent of the obligation to pay for the entirety of the cost of
the report.  In my view, the appellant has not demonstrated a basis upon which
this Court can interfere with the judges exercise of discretion in this
regard.

c)
Progress Reports of the Respondents Therapy

[31]

The appellant says that, although his notice of application sought an
order that the respondents therapist provide him with written progress reports
every 30 days, he indicated to the chambers judge during the hearing of
the application that attendance reports from the therapist would be, at a
minimum, necessary to ensure that the respondent was attending the monthly
appointments.  He submits the judge erred when he ruled, in effect, that the
best interests of his daughter did not outweigh this limited intrusion into the
respondents privacy.

[32]

In my opinion, the judge did not err in refusing to order the provision
of written progress reports.  In addition to intruding on the respondents
privacy rights, such an order would undermine the therapy because the
respondent could be reluctant to discuss her true feelings with the therapist
out of fear that it would be used against her by the appellant.  It is in the best
interests of the parties daughter that her mother receive the therapy
recommended by Mr. Colby, and the therapy should not be jeopardized
because of the appellants desire to receive progress reports.

[33]

Although the appellant may have explained to the judge that all he
wanted to know was whether the respondent was attending the therapy sessions,
it is apparent from the judges reasons that he did not understand the
appellant to have withdrawn his request for written progress reports.  The
appellants notice of application did not request attendance reports as an
alternate form of relief, and the judge was not required to consider lesser
remedies if he was not prepared to exercise his discretion to grant the relief
sought in the notice of application.  In addition, the judge left it open to
the appellant to seek further information through the respondents counsel or
through the court.

[34]

I would make one additional comment about the order made by the judge in
connection with the respondents therapy.  He ordered that the respondent was
to advise the appellant, through the respondents counsel, if she stops her
therapy.  At the time of the order, the respondent was represented by counsel,
but she is currently representing herself.  The respondent remains obliged
under the order to advise the appellant if she stops therapy and, in the
absence of counsel, she would have to advise him directly.

Conclusion

[35]

I would dismiss the appeal with costs on a party and party basis to the
respondent.  I would not make an order for special costs as the respondent has
requested because the appellants conduct in this appeal has not been
reprehensible and his bringing of the appeal was not an abuse of process.  Nor
would I make the order requested by the respondent that the appellant be
ordered to obtain leave before bringing another appeal in this Court because
there is no application before us for such an order under s. 29 of the
Court
of Appeal Act
, R.S.B.C. 1996, c. 77, and there is not a proper basis
for this Court to make such an order on its own initiative.

[36]

FRANKEL J.A.
:  I agree.

[37]

HARRIS J.A.
:  I agree.

[38]

FRANKEL J.A.
:  The appeal is dismissed.

The
Honourable Mr. Justice Tysoe


