



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



A.A.A.M. v. Director of Adoption,









2017 BCCA 27




Date: 20170113

Docket: CA44032

Between:

A.A.A.M.

Appellant

(Claimant)

And

Director of
Adoption

Respondent

(Respondent)




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson




Application to vary an
order of the British Columbia Court of Appeal, dated November 25, 2016

Oral Reasons for Judgment




Counsel for the Appellant A.A.A.M.:



J.E. Shragge





Counsel for the Respondent Director of Adoption:



M.E. Mouat, Q.C. (via
  teleconference)





Place and Date of Hearing:



Vancouver, British
  Columbia

January 11, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2017








Summary:

The appellant, Mr. M,
applied under s. 9(6) of the Court of Appeal Act to vary an order of the
chambers judge in which she held that his applications for an examination for
discovery of the Director or her representative and for a list of documents
from the Director are limited appeal orders. She denied leave to appeal the
dismissal of those applications. The chambers judge also denied his application
for leave to appeal an order dismissing his application for an interim increase
in parenting time. Held: application allowed in part. The chambers judge erred
in holding that the jurisdictional basis for the discovery orders was Rule 9 of
the Supreme Court Family Rules as opposed to Rule 10-3(7)(d). Orders made under
Rule 10-3(7)(d) are not limited appeal orders such that Mr. M is entitled
to appeal dismissal of those applications as of right. However, the chambers
judge made no error in dismissing his application for an interim increase in
parenting time.

[1]

BAUMAN, C.J.B.C.:
Mr. M applies to vary the chambers order of
Justice Fenlon made 25 November 2016, finding that two portions of his appeal
required leave and denying him leave to appeal from all limited appeal orders.
The orders concern pre-trial procedures in connection with a trial to determine
certain matters under s. 45 of the
Family Law Act
, S.B.C. 2011,
c. 25

(
FLA
). One aspect of Mr. Ms appeal goes as of
right and is scheduled to be heard on 27 February 2017. He seeks to have this
division vary Justice Fenlons order and grant him leave to appeal on the
remaining issues.

I.

Background

[2]

This case concerns the guardianship of Mr. Ms daughter, who I will
refer to as O, who is now seven years old. Mr. M is a citizen of Saudi
Arabia who is living in Canada on a now-expired student visa. O was born on 8
December 2009. Os birth mother denied Mr. Ms paternity and indicated on
the birth registration form that the father was unknown. She then signed the
necessary forms to facilitate Os placement for adoption by the Director
pursuant to the
Adoption Act
, R.S.B.C. 1996, c. 5. The Director
thereby became Os guardian.

[3]

In January 2010, DNA testing established Mr. Ms parentage. On 7
May 2010, the Director advised Mr. M that O would be placed for
prospective adoption with a couple in Alberta  the Ps  who were already
guardians of Os half-sister. Mr. M opposed the placement. On 13 September
2010, the Director gave care and custody of O to the Ps and she has lived with
them since that time.

[4]

Mr. M filed a notice of family claim seeking custody and
guardianship of O pursuant to the now-repealed
Family Relations Act
,
R.S.B.C. 1996, c. 128 (the 
FRA
) on 25 February 2011. During a
hiatus in the trial of that action the
FRA
was replaced by the
FLA
and the
Adoption Act
was amended to harmonize with the
FLA
. When
the trial resumed the parties agreed that the case should be decided under the
new provisions. At that point, Mr. M sought only to be recognized as a
guardian under the
FLA
.

[5]

The first trial resulted in an order of Justice H. Holmes dated 1
October 2014 dismissing Mr. Ms application for guardianship but granting
2.5 hours of supervised contact every six weeks and Skype visits once every
three weeks (2014 BCSC 1847). On 19 May 2015, this Court allowed Mr. Ms
appeal and declared him to be Os co-guardian (reasons indexed at 2015 BCCA
220) subject to the condition that either the Director and Mr. M reach an
agreement, or an order is pronounced by the Supreme Court of British Columbia,
allocating and defining Mr. Ms rights and those of the Director in a
manner consistent with Os best interests. If the parties failed to reach an
agreement within 30 days of the Court of Appeals order then the matter would
be remitted to the Supreme Court for an order under s. 45 of the
FLA
(
orders
respecting parenting agreements
). The court upheld the access order with
liberty to Mr. M to seek an increase in contact with O.

[6]

The parties could not come to an agreement on the appropriate parenting
arrangements. The Director applied for directions under s. 45 of the
FLA
on 8 October 2015. Mr. M cross-applied for a report prepared pursuant to
s. 211 of the
FLA
and an interim increase in parenting time. At the
hearing of the applications, in chambers, Justice Butler ordered the s. 211
report and a trial of the issue of Os parenting arrangements pursuant to Rule
10-3(7)(d) of the
Supreme Court Family Rules
, (SCFR). Subsequently,
Justice Choi was appointed trial management judge and oversaw a number of
judicial management conferences. The trial was scheduled for nine days to
commence 21 November 2016. It has since been adjourned pending Mr. Ms
present appeal.

[7]

Mr. Robert Colby delivered his s. 211 report on 26 April 2016.
The report did not include an evaluation of Os home life because his
instructions from both counsel were not to evaluate the Ps as parents.

[8]

Mr. M has also filed a judicial review application challenging the
Directors authority to place O in Alberta for adoption. On 12 May 2016,
Justice Young declared Os placement with the Ps to have been
ultra vires
the Directors authority under the
Adoption Act
. She prohibited the
Director from consenting to Os adoption by the Ps so long as they were not
residents of British Columbia. However, she also prohibited the Director from
removing O from the P residence until further order of the court. The Director
has appealed the judicial review decision. The Ps are presently seeking to
adopt O in Alberta adoption proceedings under the
Child, Youth and Family
Enhancement Act
, R.S.A. 2000, c. C-12. Mr. M has filed an
objection to the adoption application.

Application Leading to the
Present Appeal

[9]

The trial management conference concerning the s. 45 trial was set
down for 12 October 2016. On that date, Mr. M applied for the following
relief:

a)

interim
unsupervised parenting time with O to be comprised of four hours once every two
weeks near Os community, telephone calls every night with O and a weekend
every other month with O in Vancouver (the Interim Order);

b)

subpoenas
compelling the Ps to attend as witnesses at trial;

c)

a further four
hour examination for discovery of the Director or her representative (the
Discovery Order); and

d)

a supplemental
list of documents from the Director that includes all documents created or
obtained by the Ministry of Children and Family Development since 13 March 2014
and any documents to which the Director intends to refer at trial (the
Documents Order).

[10]

Mr. M relied on both Rule 9 and Rule 10-3(7)(d) of the SCFR as the
legal basis for the Discovery and Documents Orders.

[11]

Mr. M said the Discovery and Documents Orders were indispensable to
the adjudication of the central issue of what parenting arrangements are in Os
best interests. The trial management judge rejected that submission in favour
of the Directors characterization of the issue at trial  namely, to allocate
and define which, if any, of the parental responsibilities are to be granted to
Mr. M. In other words, Mr. Ms abilities and plans to exercise
parental responsibilities are at issue, not those of the Director. The trial
management judge agreed with the Director that her guardianship rights had
already been confirmed in the previous Court of Appeal decision. On the
contrary, Mr. Ms guardianship is conditional upon him reaching an
agreement with the Director or an order of the Supreme Court. She reasoned that
further examinations for discovery of the Director and eliciting specific
evidence from the P family would be irrelevant to the question of Mr. Ms
parental capacity. Accordingly, she declined to certify the subpoenas or order
further examinations for discovery.

[12]

Turning to the Discovery Order, the trial management judge was satisfied
by the Directors evidence that there had been no change in the relevant
material contained in the volumes of documents and evidence that emerged in
connection with the previous trial. She refused to order discovery.

[13]

The trial management judge also refused to expand Mr. Ms in-person
parenting time, but granted a modest increase in the frequency of his Skype
visits. She noted that it was premature to increase parenting time,
particularly on an unsupervised basis, in light of the very limited evidence
before her regarding Mr. Ms parenting capabilities.

II.

Decision under appeal

[14]

In chambers, the principal issue before Justice Fenlon was whether an
appellant requires leave to appeal a Supreme Court judges refusal to order
discovery in the usual way in a chambers proceeding that has been referred to
the trial list. If she determined that it required leave then Mr. M sought
to have her grant him leave. Mr. M argued that the trial management judge
erred in law in narrowly characterizing the issue for trial, which he says
presumed that the current parenting arrangements are in Os best interests
contrary to s. 40(4) of the
FLA
. He also said the trial management
judge was clearly wrong to refuse the subpoena order, and the Documents and
Discovery Orders. He conceded that his appeal with respect to his application
for an interim increase in parenting time

was a limited appeal order,
but said that the subpoena order came with an appeal as of right. It was
unclear whether the Discovery and Documents Orders required leave.

[15]

Justice Fenlon denied leave to appeal the dismissal of Mr. Ms
application for an interim increase in parenting time, the Discovery Order and
the Documents Order. She agreed that the denial of the subpoena order is
appealable as of right. Currently, that hearing is scheduled to proceed on 27
February 2016. Mr. M seeks to have this division vary the chambers judges
decision such that the relief in subparagraphs 9(a), 9(c) and 9(d), above, will
also be considered in his appeal of the order declining certification of the
subpoenas. I note that Justice Fenlons decision is currently being
transcribed. Mr. M submits that she rested her decision on a finding that
the substance of the Discovery and Documents Orders was relief of a nature that
ordinarily would fall within the ambit of Rule 2.1(b)(iii) of the
Court of
Appeal Rules
.

III.

Issues

[16]

In this application to vary the chambers judges order, the following
points are in issue:

a)

Is the order
refusing to grant the Discovery and Documents Orders a limited appeal order?

b)

Should this
Court grant leave to appeal the refusal of the Interim Order?

[17]

If this Court determines that the Discovery and Documents Orders are
limited appeal orders then Mr. M accepts the chambers judges refusal to
grant leave. If, however, this Court finds that the chambers judge erred then
the appeal goes as of right and will be heard together with Mr. Ms appeal
of the dismissal of his application for certification of the subpoenas.

IV.

Submissions

[18]

Mr. M acknowledges that an application to vary an order of a single
justice is not a renewal of the original application but says that the justice
in this case was wrong in law or principle. With respect to the Discovery and
Documents Orders, he submits that the chambers judge erred in concluding that
the jurisdictional basis for the relief sought was under Part 9 of the SCFR as
opposed to Rule 10-3(7)(d). The latter rule is not listed in Rule 2.1 of the
Court
of Appeal Rules
such that the orders are appealable as of right.

[19]

With respect to the order refusing his application for an interim
increase in parenting time, Mr. M acknowledges that this Court only
interferes with interim custody orders in exceptional circumstances, but says this
case meets that threshold. He says the existing visitation arrangements are woefully
inadequate and have exacerbated Os estrangement from him. He further submits
that it would be unjust for him to wait until the end of the s. 45 trial
to obtain a modest increase in parenting time.

[20]

Before the chambers judge, the Director submitted that leave to appeal
the Discovery and Documents Orders was required. She said a chambers matter
that is referred to the trial list is a scheduling decision and does not make
an application into a trial
de novo
. Part 9 of the SCFR deals with
discovery procedures, and that rule is specifically listed under Rule
2.1(b)(iii) of the
Court of Appeal Rules
.

[21]

The Directors position on the merits of the leave application was that
the additional information sought by Mr. M is irrelevant to the upcoming
s. 45 trial. The Director argued that the central issue to be decided by
the trial judge is not what parenting arrangements are in Os best interests,
but rather what parenting responsibilities are to be granted to Mr. M. She
said the focus of the Alberta adoption application will be on the Ps. That
court will make the ultimate determination of what is in the best interests of
O. In the s. 45 trial, the focus is on Mr. M. Regardless of which
s. 45 responsibilities Mr. M does or does not have, the Alberta court
hearing the adoption application will make the final determination of which
plan is in the best interests of O.

[22]

With respect to the increase in Mr. Ms access, the Director noted Mr. Colbys
concern that Mr. M presents a flight risk and his conclusion that at this
time, this Assessor cannot present a positive evaluation of Mr. [M]s
ability to engage in parenting time with [O]. She argues that there is no
evidence that a change in the current parenting time prior to the hearing is in
Os best interests.

[23]

The Director further submitted that the factors governing leave to
appeal (as set out in
Goldman, Sachs & Co. v. Sessions
, 2000 BCCA
326 at para. 10) are not met. The appeal is not of significance to the
practice and the relief sought is not significant to the issue the judge will
decide at trial. The appeal would further unduly hinder and delay determination
of Mr. Ms guardianship responsibilities. Further, the Director said the
appeal is without merit for the reasons outlined above concerning the central
focus of the s. 45 trial being on Mr. M.

V.

Analysis

[24]

The standard of review of a decision of a single
justice in chambers is a high one. In
British Columbia v. Phillip Morris
International Inc.
, 2016 BCCA 363 at para. 19, the court said as
follows:

The standard of review that applies on this application
is uncontroversial. In
Langston v. Teamsters Local 155
, 2010 BCCA
481 it was succinctly summarized as follows:

[29]      The standard of review of a decision of a chambers
judge is a high one. A review application is not a rehearing of the application
before the chambers judge.
Absent a demonstrated error of law, error of
principle or misconception of the facts, a division of this Court may not
interfere with or vary a discretionary decision of a chambers judge:

Frew
v. Roberts
, [1990] B.C.J. No. 2175 (C.A.),
Haldorson v.
Coquitlam (City)
, 2000 BCCA 672 at para. 7,
Mullins v.
Levy
, 2010 BCCA 294 at para. 4. [Emphasis added.]

[25]

Turning to the first issue of whether leave to appeal the Discovery and
Documents Orders was required, I find that Mr. M has demonstrated that the
chambers judge erred in principle. The starting point is Rule 2.1 of the
Court
of Appeal Rules
, the relevant parts of which read as follows:

The following orders are prescribed as limited appeal orders
for the purposes of section 7 of the Act

(b) an order granting or refusing
relief for which provision is made under any of the following Parts or rules of
the Supreme Court Family Rules:

(iii) Part 9 [Procedures for
Obtaining Information and Documents], other than Rule 9-6(6) [application for
order on admissions];



[26]

Section 7 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77
requires that an appellant obtain leave to appeal from a justice in order to
appeal the prescribed limited appeal orders.

[27]

The language of granting or refusing relief for which provision is made
underPart 9 refers to the generally applicable rules governing procedures for
obtaining information and documents. Generally, parties in a family trial are
entitled as of right to document discovery (Rule 9-1) and to examine for
discovery the opposing party (Rule 9-2). This is clear from the language of
those rules which specifies that parties
must
prepare a list of
documents and
must
make themselves available for examination for discovery.

[28]

In the present case, the origin of the upcoming s. 45 trial is this
Courts decision declaring Mr. M to be a co-guardian and, absent
agreement, directing the Supreme Court to determine the parenting arrangements
that are in the best interests of O. It is that order that ultimately led to
Justice Butler ordering a trial of the s. 45 issues pursuant to the Supreme
Courts authority under Rule 10-3(7)(d). That rule reads, in relevant part, as
follows:

(7)Without limiting subrule (4), on
the hearing of a chambers proceeding, the court may



(d) order a trial of the chambers proceeding, either
generally or on an issue,
and order a pleading to be filed and, in that
event, give directions for the conduct of the trial and of pre-trial
proceedings and for the disposition of the chambers proceeding
. [Emphasis
added.]

[29]

When Justice Choi subsequently considered Mr. Ms application at
the trial management conference I conclude she was exercising the courts
powers under Rule 10-3(7)(d) to give directions for the conductof pre-trial
proceedings. This rule accords jurisdiction to order discovery as a pre-trial
proceeding where a chambers matter has been referred to the trial list; it does
not simply incorporate Rule 9-2 by reference. That Justice Choi was exercising
her jurisdiction under Rule 10-3(7)(d) is true regardless of whether she
treated the orders as having been made under Rule 9. A court must be correct in
identifying the jurisdictional basis for its orders.

[30]

Accordingly, the jurisdictional basis for the order appealed from is
Rule 10-3(7)(d). This puts it outside the scope of Rule 2.1 of the
Court of
Appeal Rules
such that Mr. M is entitled, without leave being required,
to appeal the trial management judges dismissal of his application for the
Discovery and Documents Orders. I pause to note that I make no comment on the
merits of his appeal on these issues.

[31]

The Director relies on this Courts decision in
Tri-City Capital
Corp. v. 0942317 B.C. Ltd.
, 2016 BCCA 407. At paras. 22 and 23 of
Tri-City
Capital Corp.
, Justice D. Smith discusses Rule 2.1 of our Rules:

[22]      The purpose of enacting R. 2.1 was to bring
certainty and clarity to those orders that will require leave to appeal. That
clarity and certainty requires orders to correctly state the rule or
jurisdictional basis for the order. An order should refer to more than the mode
of proceeding as that authority. The order nisi of foreclosure in this instance
was not made pursuant to R. 9-7; it was granted pursuant to the legislative
provisions of R. 21-7. To the extent that the Order refers to R. 9-7 as the
authority under which the Order was made, it was, in my respectful view, in
error.

[23]      Rule 2.1 prescribes a
list of orders as limited appeal orders that require leave to appeal. For good
reason, the Legislature has specifically prescribed orders arising from a
certain mode of hearing, such as Part 5 (relating to case management),
Part 7 (relating to procedures for ascertaining facts) and R. 12-2
(orders made during a trial management conference). When an order is made in a
listed mode of hearing, it will always require leave to appeal. The opposite
however is not always the case. If an order is made in a mode of hearing that
is not listed in R. 2.1 (in this case, a summary trial), but is still made
under the authority of a listed category (in this case, R. 21-7) it cannot
follow that such an order automatically proceeds by right. To conclude
otherwise would be to allow the mode of hearing to override the jurisdictional
basis of the order, defeating the Legislatures intention to have matters
decided under R. 21-7 classified as limited appeal orders.

[32]

In my view, this extract rather supports the view that the Discovery and
Document Orders were
not
intended to be limited appeal orders. If Rule
10-3(7)(d) said for example:

and in that event give
directions for the conduct of the trial and of pre-trial proceedings
under
Part 9


then
Tri-City
Capital Corp.
would apply as the jurisdictional basis for the Document and
Discovery Orders would indeed be Part 9 of the Rules. The orders would
therefore be limited appeal orders under Rule 2.1 as
Tri-City Capital Corp.
holds. But that is not what Rule 10-3(7)(d) of the
SCFR
says. The
jurisdictional basis for the order in that Rule is not Part 9 of the
SCFR
,
it is rather a jurisdictional basis contained wholly within Rule 10-3(7)(d).
This distinction is reflected in Rule 10-3(7) itself. For example, Rule
10-3(7)(c) provides that on the hearing of a chambers proceeding the court may:

obtain the assistance of one or
more experts, in which case Rule 13-5 applies

The sub-rule here specifically incorporates Rule 13-5, which
is a jurisdictional basis expressly included in Rule 2.1(b)(vi). The omission
of such an express reference in Rule 10-3(7)(d) means that the Documents and
Discovery Orders fall outside of Rule 2.1 of the
Court of Appeal Rules
.

[33]

Turning to the second issue, I find that the chambers judge did not err,
as Mr. M alleges, in refusing to grant leave to appeal the dismissal of Mr. Ms
application for an interim increase in parenting time. As Mr. M
acknowledges, this Court will only interfere with interim orders of this nature
in exceptional circumstances. He says he has met that threshold because of the
woefully inadequate nature of the existing visitation arrangements and that
it would be unjust to require him to wait until the conclusion of the s. 45
trial to obtain an increase in parenting time.

[34]

Mr. Ms submissions do not address the valid concern raised by the
trial management judge that she lacked sufficient information concerning Mr. Ms
circumstances to determine whether an increase in parenting time was justified.
The trial management judge properly emphasized that Mr. M was seeking
unsupervised
parenting time with O. This makes his own parenting capabilities the key issue
for the court in determining whether an increase is in Os best interests. I
would decline to intervene with the chambers judges conclusion that leave
should not be granted on the order dismissing Mr. Ms application for an
interim increase in parenting time.

[35]

In the result, I would allow the application on whether the Discovery
and Documents Orders are limited appeal orders. The order will be varied to
reflect my holding that these are not limited appeal orders. I would dismiss
the application to vary the order concerning the interim increase in parenting
time.

[36]

FRANKEL J.A.
: I agree.

[37]

DICKSON J.A.
: I agree.

[38]

BAUMAN C.J.B.C.
: The application to vary is allowed in the manner
and to the extent indicated in my reasons.

The Honourable Chief Justice Bauman


