



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



McDermott v. Thompson,









2021 BCCA 23




Date: 20210115

Docket: CA46949

Between:

Kevin Franklin
McDermott

Appellant

(Claimant)

And

Karen Gillian
Thompson

Respondent

(Respondent)




Before:



The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Goepel

The Honourable Madam Justice DeWitt-Van Oosten




On an application to
vary: An Order of the Court of Appeal for British Columbia
(in Chambers), dated October 14, 2020 (
McDermott v. Thompson,
Vancouver Docket CA46949).

Oral Reasons for Judgment




The Appellant, appearing in person

(via videoconference):



K.F. McDermott





Counsel for the Respondent

(via videoconference):



M.G. Perry





Place and Date of Hearing:



Vancouver, British
  Columbia

January 11, 2021





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2021








Summary:

The appellant applies to
vary an order made by a judge of this Court dismissing his application for
leave to appeal a Family Law Act protection order made by a Supreme Court judge
that precludes him from having access to his child.  The dismissal was based on
the fact that the appellant had been charged with assaulting the child and was
subject to a no-contact undertaking.  Held: Application dismissed.  New
evidence that the criminal charge against the appellant had been stayed
constitutes a material change to the circumstances which underpinned the
chambers judges decision.  However, a fresh consideration of whether leave to
appeal should be granted results in the same outcome.  The interests of justice
do not warrant granting leave to appeal as the protection order permits the
appellant to apply in the Supreme Court to set the order aside and the hearing
of such an application is underway.

[1]

FRANKEL J.A.
: This is a high-conflict family law case commenced
by the appellant, Kevin Franklin McDermott, in October of 2011.  Mr. McDermott
now applies, pursuant to s. 9(6) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77, to vary an order of Justice Abrioux, sitting in
chambers.  That order dismissed Mr. McDermotts application for leave to
appeal two orders made by Justice Mayer of the Supreme Court of British
Columbia.  Those orders concern Mr. McDermotts access to the child he and
the respondent, Karen Gillian Thompson, had together.  That child is now ten
years old and has grown up primarily in Ms. Thompsons care.

[2]

On May 5, 2020, Ms. Thompson applied for a protection order under
s. 183(3)(a) of the
Family Law Act
, S.B.C. 2011, c. 25.  She
also sought to vary earlier orders granting Mr. McDermott parenting time. 
At that time, the trial was scheduled to commence on July 2, 2020, for four
weeks.

[3]

In the affidavit Ms. Thompson swore in support of her application,
she alleged Mr. McDermott had been emotionally and physically abusive to the
child on a number of occasions.  The most recent incident was alleged to have occurred
on April 30, 2020.  Ms. Thompson deposed that when she picked the child up
from Mr. McDermotts home that day, the child told her Mr. McDermott
had assaulted him.  She reported the matter to the police.  This led to Mr. McDermott
being arrested for assault in early May.  He was released on an undertaking
with the condition that he not have any direct or indirect contact with the
child.  Later, an information was sworn charging Mr. McDermott with
assault.

[4]

On May 14, 2020, the application for a protection order came before
Justice Mayer.  Mr. McDermott, who had been unable to prepare
response materials, unsuccessfully sought an adjournment.  On the basis of the limited
materials before him, Justice Mayer considered it appropriate to make what he
described as an interim protection order  on a without-prejudice basis,
pending a full hearing.  That order restricts Mr. McDermotts ability to
communicate with the child or be in the childs presence.  A formal order was
entered that day.  As provided for in s. 183(4) of the
Family Law Act
,
the order states it will expire in one year.

[5]

On May 20, 2020, Mr. McDermott filed an affidavit in which he disputed
all the allegations.

[6]

The hearing resumed on May 21, 2020.  At the conclusion of that hearing Justice
Mayer ordered the continuation of the protection order and stayed the
parenting-time orders while that order was in effect.  In giving Mr. McDermott
leave to apply to set the protection order aside, Justice Mayer said this:

[21]      I will just make an additional
order which is that Mr. McDermott is at leave to bring an application, if
he is successful in gathering additional relevant evidence, to apply to set
aside this protection order on one condition, that is, that any such
application to set aside this protection order will not be set down prior to
the conduct of a case management hearing before [the case management judge] for
a number of reasons.

[22]      First
of all, there is an issue with respect to the completion and/or issuance of the
s. 211 report which I understand has been completed by Dr. England
pursuant to previous orders of this Court, but has not been released as a
result of non-payment.  That is an issue to be discussed, in my view, before [the
case management judge].  It is one thing to argue that further evidence would
be of assistance to the court in determining whether or not a protection order
is necessary.  It is another thing to make that argument when at the same time
taking steps which arguably have resulted in that report not being issued.  I
am not certain if that is the case,
Mr. McDermott.
I do not know if that is the case, but it may be the case, and this is
something that [the case management judge] will be able to work out at a case
management conference.

[7]

The May 21st order has not been entered because
the parties have been unable to agree on its terms.  The dispute is over the
basis on which Mr. McDermott can apply to set the May 14th order aside.  The
draft order prepared by Ms. Thompsons counsel states:

2.   The Claimant is
granted leave to bring an application to set aside this courts May 14, 2020
Protection Order on the basis of new evidence, but subsequent to a case
management hearing with the case management Justice.

Mr. McDermotts position is that the
order should use the words additional relevant evidence as per para. 21
of Justice Mayers May 21st reasons.  However, as discussed below, in light of
the position on the admissibility of evidence taken by Ms. Thompson on
this application, it appears the parties differences are only a matter of semantics.

[8]

The trial did not proceed in July of 2020; it is
now set for July of 2021.

[9]

On August 4, 2020, Mr. McDermott filed a
notice of appeal from the May 14th and 21st orders and an application for a no
fees order.  On August 25, 2020, a judge of this Court granted a no fees order
and directed that the notice of appeal stand as an application for leave to
appeal.  That judge expressed the view that one of Mr. McDermotts three
proposed grounds of appeal is arguable.  On September 23, 2020, Mr. McDermott
filed an amended application for leave to appeal setting out six grounds, the
first being the one said to be arguable.

[10]

On October 5, 2020, Mr. McDermott filed an
application to settle the terms of the May 21st order.  That hearing has yet to
take place because the parties have been unable to agree on a mutually
convenient date.

[11]

The chambers judge heard the leave application
on October 8, 2020, and gave oral reasons dismissing it on October 14, 2020.  He
accepted that arguable grounds exist with respect to the protection order. 
However, he concluded it was not in the interests of justice to grant leave
because of the no-contact undertaking.  In this regard, he stated:

[27]      First of all, Mr. McDermotts undertaking to
not have any contact with his child remains in force and, in my view, is
dispositive of this application.  An appeal to set aside the Protection Order
and reinstate parenting time would serve little purpose and would be contrary
to the interests of justice.

[28]      Furthermore, I am not persuaded that an appeal
would be an efficient use of the Courts or the parties resources.  I am
advised by the parties that following his memorandum, [the case management
judge] has set down a case management conference for Wednesday, October 14, 2020,
that is today, at which time he will apparently establish a schedule for the
hearing of Mr. McDermotts application to set aside the
Protection Order as contemplated in
the May 21, 2020 order.

[29]      Accordingly, I am of the view there is no benefit
to be gained by permitting Mr. McDermott to pursue proceedings in this
Court in relation to the May 21 order when there is a procedure available to
obtain essentially the same relief in the Supreme Court.  I do recognize,
however, that the appellants position in this Court is that the Protection
Order was made on an improper legal basis.  But to grant leave would likely
negatively affect, that is hinder the broader issues between the parties,
namely the hearing of the application to set aside the Protection Order in the
Supreme Court and ultimately a trial of the action which is now under renewed
case
management.



[32]      In any event, while
there may well be a real issue as to whether an appeal would be bound to
fail, the issue is essentially moot as long as Mr. McDermott is subject
to the no-contact undertaking, at least during the timeframe of the upcoming
case management and the hearing of his application in the Supreme Court to set
aside the Protection Order.

[12]

On October 20, 2020, Mr. McDermott filed an
application to vary the chambers judges order.  He seeks an order granting
leave to appeal the May 14th and 21st orders and directing that the appeal be
heard on an expedited basis.

[13]

As disclosed in an affidavit Mr. McDermott
filed on November 3, 2020, the Crown entered a stay of proceedings on the
assault change on October 31, 2020.  It did so based on a recording Mr. McDermott
made of his April 30, 2020 parenting time that disclosed the assault did not
happen.  As a result of the stay, Mr. McDermott is no longer bound by the
undertaking.  Ms. Thompson accepts the child misled her and others in
regard to Mr. McDermott engaging in acts of physical violence on this and
other occasions.

[14]

Mr. McDermott has filed an application in
the Supreme Court seeking to set the protection order aside.  The application
commenced before the case management judge on December 11, 2020.  Following a
daylong hearing it was adjourned to January 28, 2021, for continuation.  On that
application, Mr. McDermott relies on recordings he made of many of his
parenting times with the child, including the one from April 30, 2020.  In
addition, he relies on a
Family Law Act
s. 211 report prepared by psychologist
Dr. Rebecca St. Clere England in January 2020, which had been completed but
not released to the parties when this matter was before Justice Mayer.  In that
report, Dr. England recommends the child be equally parented by Mr. McDermott
and Ms. Thompson.  Dr. England further opines that she does not have concerns
regarding family violence but is concerned the child has developed an unhealthy
alignment with Ms. Thompson, and is at risk of becoming alienated from Mr. McDermott.

[15]

The standard of review on an application to vary
an order made by a chambers judge in this Court is as set out by Justice Willcock
in
Animal Welfare International Inc. v. W3 International Media Ltd.
,
2015 BCCA 148, 66 C.P.C. (7th) 309:

[9]

On an application to
discharge or vary an order of a justice in chambers, the applicant must
establish there has been an error in principle; the justice was wrong in the
legal sense; the justice misconceived the facts; or relevant information was
not brought to the justices attention:
East Broadway Residents Association
v. Vancouver (City)
, 2000 BCCA 657;
Haldorson v. Coquitlam (City)
,
2000 BCCA 672; and
McKnight v. Hutchison
, 2012 BCCA 510.

Mr. McDermott contends the chambers
judge made both factual and legal errors.

[16]

There can be no question that the undertaking
was central to the chambers judges decision to refuse leave.  However, that
undertaking is no longer in force.  This is new evidence that should be admitted
and considered on this application:
Animal Welfare International Inc.
at
paras. 1012.  As the elimination of the undertaking constitutes a
material change in circumstances, Mr. McDermotts application for leave
warrants fresh consideration.

[17]

Even though the undertaking is no longer in
force, and notwithstanding the existence of at least one arguable ground, I am
not persuaded that leave should be granted.  I say this because the interests
of justice are the overarching concern on an application for leave:
K.F.M.
v. K.G.T.
, 2020 BCCA 10 at paras. 1112, 35 R.F.L. (8th) 74.

[18]

As the chambers judge noted at para. 23 of
his reasons, protection orders are a form of interim relief, which is why leave
to appeal is required.  This Court is generally reluctant to interfere with interim
orders in family law matters:
K.F.M.
at paras. 1314.  Apposite is
the following from the judgment of Justice Huddard in
F.(G.F.) v. B.(C.L.)
,
2003 BCCA 382 (Chambers), 184 B.C.A.C. 1:

[10]      The jurisdiction of
this Court to vary an interim order for custody or for most orders made under
the
Family Relations Act
is very limited.  All of these orders are
discretionary.  It is only in exceptional circumstances, where there is a clear
reason to interfere that this Court will do so.  In a case which Mr. F. so
properly provided to me (
Testawitch v. Farquhar
[1997] B.C.J. No. 2866),
Mr. Justice Hall commented that the management of these cases is usually
best left to the trial court.  It is only when a final resolution of the matter
has been arrived at in the trial court that it will usually be appropriate for
this Court to hear the matter.  Even then it is rare for this Court to
interfere with the decision of a trial judge after the trial.  This Court has
recently been told by the Supreme Court of Canada (
van de Perre v. Edwards
[2001] 2 S.C.R. 1014), we should not interfere with a decision of a custody
matter except in the most exceptional of circumstances.

[19]

Also pertinent is the following from
Gill v.
Delbeck
, 2020 BCCA 37 (Chambers), in which Justice Garson refused an
application by the father for leave to appeal an interim order granting the
maternal grandparents time with the children, the mother having died:

[21]

As stated in
Munro v.
Munro
, 2015 BCCA 530 at para. 18 (Chambers), the values of efficiency
and proportionality are relevant to the interests of justice.  The question is
whether the potential benefit of a successful appeal justifies the expense that
both parties will incur if it proceeds, given that the appeal will have no
effect on the final order made at trial.  In my view, it does not.

[20]

In his submissions, Mr. McDermott emphasized
that his position is that a protection order should never have been granted and
expressed concern the case management judge might not have the ability to make
that determination.  He submits that if the order is set aside only on a
going-forward basis, then the stigma associated with it having been granted in
the first place will remain.  Further, based on the terms of the May 21st draft
order prepared by Ms. Thompsons counsel, Mr. McDermott is concerned Ms. Thompson
may object to the admissibility of some of the evidence he seeks to have the
case management judge consider because it is fresh as opposed to new
evidence: see
Stav v. Stav
, 2012 BCCA 154 at para. 30, 18 R.F.L.
(7th) 326, leave to appeal refd [2012] 3 S.C.R. xiii.

[21]

With respect to the scope of the review now
taking place in the Supreme Court, Ms. Thompson submits the case
management judge is entitled to consider whether a protection order should have
been granted in the first place (i.e., that judge is entitled to consider
the matter
de novo
).  In the circumstances of this case, I agree.  It is
clear the protection order was made on a most limited record.  The case
management judge, based on the fuller record before him, can properly determine
whether it should have been made.  That judge is not limited to determining
whether there has been a material change in circumstances that makes that order
no longer necessary.

[22]

Ms. Thompson also clarified her position
with respect to some of the evidence Mr. McDermott wishes the case
management judge to consider.  More specifically, Ms. Thompson said she does
not object to the admissibility of: (a) the parenting-time recordings;
(b) Dr. Englands report; and (c) evidence the assault charge was
stayed.  What weight the case management judge should give to any of the
evidence is, of course, a matter for argument.

[23]

Given that the application before the case
management judge will be continuing in just under two weeks, I have concluded that
the time and resources of the parties, not to mention the resources of the
judicial system, are best spent litigating whether the protection order should
be set aside in the Supreme Court.  Put otherwise, in the circumstances of this
case, it is not in the interests of justice to grant leave.

[24]

I would urge the parties to settle the terms of
the May 21st order prior to the resumption of the hearing before the case
management judge.

[25]

In the result, I would dismiss this
application.  I would order that the parties bear their own costs.

[26]

GOEPEL J.A.
: I
agree.

[27]

DEWITT-VAN OOSTEN J.A.
: I agree.

[28]

FRANKEL J.A.
: The
application is dismissed and there will be no order as to costs.

The Honourable Mr. Justice Frankel


