Fox v. Fox

2018 BCCA 359 Fox v. Fox

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Fox v. Fox, 2018 BCCA 359 Date: 20180920 Docket: CA45024 Between: Stephen Bernard Fox aka Stephen B Fox Appellant (Claimant) And Yvette Colleen Fox Respondent (Respondent) Before: The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter The Honourable Madam Justice Griffin On appeal from: An order of the Supreme Court of British Columbia, dated December 12, 2017 (Fox v. Fox, 2017 BCSC 2286, Vancouver Registry E043563). Oral Reasons for Judgment Counsel for the Appellant: C. Aldea Counsel for the Respondent: Y.S. Leibovitz Place and Date of Hearing: Vancouver, British Columbia September 17, 2018 Place and Date of Judgment: Vancouver, British Columbia September 20, 2018 Summary: The appellant father appeals from an order varying a final order in respect of the method of dispute resolution as between him and the respondent mother on significant issues involving their son. The change gives the mother the ability to make decisions in the event of disagreement, with the father having the right to bring an application if he disagrees. He submits: the judge should have taken the child's views into account; the judge should not have determined the matter on affidavit evidence; and the judge erred in stating virtually all email communications between the parties were before her. Held: appeal dismissed. The judge made no error in

determining that it would be inappropriate to take the child's views into account on an issue of dispute resolution. The judge also made no error in deciding the matter based on affidavit evidence when the father did not suggest any other process before her, the issue was narrow and there was no material conflict on the evidence. Lastly, reading the judge's reasons in context, the judge made no error in her findings regarding the parties' email communications. Introduction [1] GRIFFIN J.A.: The appellant, Stephen Fox (the "Father"), appeals an order made December 12, 2017 following an application pursuant to R. 10‑5 of the Supreme Court Family Rules, B.C. Reg. 169/2009 [Family Rules]. The order changed the process that he and the respondent, Yvette Fox (the "Mother"), must follow when they disagree about important decisions concerning their son. [2] The Father and Mother separated shortly after the son's birth. They both agree that they should be joint guardians. [3] The prior process for resolving disputes concerning their son was set out in a court order made September 11, 2006, which I will refer to as the Final Order. The Final Order finalized the parties' divorce and contained a number of terms of joint guardianship made by consent. These terms included a dispute-resolution term that required the parties to attempt to reach agreement on major decisions regarding their son.

If they could not reach agreement, the Final Order required the parties to seek out mediation and eventually a court order. [4] At the time of the Final Order the child was three years old. [5] The order under appeal varied the Final Order (the "Varied Order"). It still provides that the parties are to attempt to reach agreement on significant decisions regarding their son. However, the Varied Order changes the process they must follow in the event of disagreement. In the event of disagreement, there no longer is a requirement to go to mediation. Instead, the Mother will have the right to make that decision and the Father will be at liberty to apply to the British Columbia Supreme Court for a review of that decision pursuant to s. 49 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. Judge's Decision [6] By way of background, as a premise to the Varied Order, the judge first found that there had been a material change in circumstances from the time of the Final Order. Based on s. 47 of the FLA, this provided the authority for the judge to change the Final Order. [7] The Father does not argue that the judge applied the incorrect legal test in this regard. Nor does the Father argue that there was not a material change in circumstances, although he disagrees with some of the judge's findings of fact. [8] In finding a material change in circumstances, the judge reviewed the evidence

before her and, in summary, found the following facts: a) The child was only three years old at the time of the Final Order and was, at the date of the hearing and judgment, 14 years old with dramatically changed needs and circumstances. In particular, the child had learning disabilities ranging from moderate to severe, requiring more than typical support in schooling and tutoring. b) The hope at the time of the Final Order, that the parties would be able to cooperate in decision-making, had failed in practice. Instead, there was dysfunctional communication between the parties. In particular, the judge found that the Father appeared incapable or unwilling to engage in respectful and appropriate discussions with the Mother about important issues concerning the child. c) The Mother was the parent who acted as the principal caregiver for the child. Further, she was the parent who took the initiative to organize and take him to most of his health and dental appointments, seek out, register and pay for extracurricular activities, and instigate discussion with the Father on significant issues such as the need for a psycho-educational assessment for the child and the best school for him. d) Mediation proved quite costly for the parents, with one mediation they attended costing just over $2,000. The dispute resolution process of having a party go to court in the absence of an agreement

resulted in the Mother having to bring an application to resolve the choice of school for the child, to which the Father simply did not respond. [9] After finding a material change in circumstances, the judge went on to consider the best interests of the child. [10] The judge found that (at paras. 52‑57): [52] In any event, Ms. Fox carries the ongoing and daily responsibility of meeting [the child's] daily needs and wants and she is left to bat at shadows in terms of seeking Mr. Fox's agreement or even support toward making timely and important decisions relating to [the child]. [53] Simply put, Mr. Fox's negative feelings towards Ms. Fox run deep and I have grave concerns that he can set them aside so as to meaningfully and productively participate with Ms. Fox in the decision-making process relating to [the child]. [54] Mr. Fox also suggests that this Court should not entertain any change to the decision-making process in the Final Order without hearing from [the child]. Section 37(2) of the Act provides that in determining the best interests of [the] child, the child's views must be considered, unless it would be inappropriate to consider them. [55] In my view, it is inappropriate here to involve [the child] in the determination as to the decision-making process in relation to himself. This would inevitably bring him into the dispute between the parties and place him in an

impossible position of having to choose between his parents' opposing views. [56] I agree that it is in [the child's] best interests that Ms. Fox be given final decision-making authority with respect to [the child], as she has proposed. Allowing Ms. Fox to make the major decisions would, in my view, simply acknowledge what is already going on. It would not obviate the requirement on Ms. Fox's part to make good faith efforts to obtain Mr. Fox's agreement on these important issues. No one, least of all Ms. Fox, is suggesting that Mr. Fox be disentitled from expressing his views and that those views be considered in a respectful manner. Mr. Fox loves his son and no doubt will have valid input that must be considered. [57] However, in the future, if Mr. Fox has a valid position on a significant issue regarding [the child], he will have to decide whether to ignore Ms. Fox, as he has done in the past, engage in a productive discussion with Ms. Fox or, if all else fails, proactively assert his position by seeking a review of Ms. Fox's decision by this Court. [11] I turn now to the alleged errors. Grounds of Appeal [12] The Father advances three grounds of appeal. He alleges that the judge erred: i. "by refusing to consider the views of then 14-years-old [son], based on her finding that it would be inappropriate to do so, when this finding was not supported by analysis or evidence

particular to this case." ii. "by making a massive and fundamental change to the Final Order in a summary manner, based solely on affidavit evidence". iii. "by making a sweeping finding of fact that 'virtually all of the communication between the parties' was before her, when this finding was not supported by evidence." [13] The standard of review is not in issue in this appeal. [14] The Father correctly submits that the standard of review for grounds 1 and 3 makes it necessary for him to establish that the judge made a palpable and overriding error. [15] The Father submits that the standard of review for ground 2, involving an exercise of discretion to hear a matter by application based on affidavit evidence requires that he establish that the judge's exercise of discretion was "unjudicial". [16] The analogy the parties rely on is the discretion of a judge under the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules], to hear a matter by summary trial. The standard of review for the exercise of that discretion was stated more completely in Gichuru v. Pallai, 2013 BCCA 60 at para. 34: [34] In summary, the jurisprudence is clear that, subject to certain guidelines, the decision as to the suitability of proceeding by way of summary trial to determine an action (or issue), is a discretionary one. Appellate deference is given to the exercise of discretionary powers in the

absence of a clear conclusion that the discretion has been wrongly exercised, in that no weight or insufficient weight has been given to relevant considerations (see Creasey v. Sweny (1942), 57 B.C.R. 457 at 459 (C.A.); Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para. 104; Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203 at para. 94, leave to appeal ref'd [2009] S.C.C.A. No. 364; and Bell v. Levy, 2011 BCCA 417 at para. 75), or it appears that the decision is clearly wrong and may result in an injustice (see Taylor v. Vancouver General Hospital (1945), 62 B.C.R. 42 at 50, [1945] 3 W.W.R. 510 (C.A.)). [17] I will deal with each ground of appeal in turn. Ground #1 [18] Turning to the first ground of appeal, s. 37(1) of the FLA provides that in making an order respecting guardianship and parenting arrangements, the court must consider only the best interests of the child. Section 37(2) requires that a court consider a number of factors in determining the best interests of the child. This includes the child's views, unless it would be inappropriate to consider them: FLA, s. 37(2)(b). [19] For ease of reference, I set out s. 37 of the FLA: 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of

the child only. (2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to

the child's safety, security or well-being. (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. (4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [20] Here, the judge correctly directed her mind to s. 37(2) of the FLA at para. 54 of her reasons. [21] This is unlike a case where an older child's views are canvassed as to actual parenting arrangements. What the Father suggested is that the court canvass the child's views as to how the Father and Mother should resolve their disputes. [22] The judge held that it was inappropriate to involve the child in the determination as to the decision-making process in relation to himself. She noted, at para. 55 of her reasons, that it would bring him into the dispute and put him in an impossible position of having to choose between his parents' opposing views. [23] Generally speaking, the prevailing wisdom is that parents should not involve a child in the parents' disputes about what is best for the child. This is because it is highly stressful for the child and divides the child's loyalties. It can also be a tool by which one parent tries to

alienate the child from the other parent. [24] Sometimes, it may be appropriate for a neutral person to obtain an older child's views on some of the living arrangements. However, that is a different matter than the issue in this case. [25] The FLA provides various ways for a court to obtain the views of a child, including: in s. 202 allowing for the receipt of hearsay evidence; in s. 203 appointing a lawyer to represent the child's interests; and in s. 211 for the appointment of a trained independent person to assess the child's views or needs and prepare a report for the court. The Father sought no orders under any of these sections in his application response. [26] In this case, even though the child was 14, he had serious learning difficulties. In my view, it would have required quite specific, exceptional evidence to lead the judge to conclude that the child should have been involved in his parents' disputes or offered opinions as to how those disputes should be resolved. It would have required similar evidence to establish that his views would be entitled to any weight. No such evidence was before the judge. [27] I see no basis for concluding that the judge made a palpable and overriding error in reaching this conclusion. Ground #2 [28] The second ground of appeal is that the judge decided the issue before her on affidavit evidence. [29] The Father relies on a number of

cases decided under R. 9‑7 of the Civil Rules, or its predecessor Rule 18A, addressing when a judge hearing a summary trial application should decide that the matter is not suitable for determination by summary trial. [30] The parties on this appeal did not put forward any argument in respect of the differences between a summary trial application under R. 9‑7 of the Civil Rules and an application brought to vary a final order under R. 10‑5(2) of the Family Rules. I note that there are important differences between these Rules. The Civil Rules expressly provide in R. 9‑7(11) for a judge to dismiss the summary trial application on the basis that the issues are not suitable for disposition under that Rule. No parallel provision is found in respect of applications to vary final orders pursuant to R. 10‑5(2) of the Family Rules. However, R. 10‑3(4) of the Family Rules does provide that a court may order that a person who gave affidavit evidence attend for cross-examination. [31] Regardless, there are three obvious problems with the Father's argument: a) both parties proceeded on the application without any suggestion that either party should be cross-examined on their affidavits; b) the issue before the judge was a narrow one. It would have been costly and disproportionate to require cross-examination on affidavits, thereby impeding access to justice; and, c) the material evidence

before the judge was, for the most part, not in conflict. There were no material credibility differences. Rather, the Father characterized the evidence differently than the Mother. [32] Together, these problems present an insurmountable obstacle to the Father's argument on this second ground of appeal. Ground #3 [33] The third ground of appeal takes issue with a finding of fact made by the trial judge regarding the parties' communications. [34] The judge found at para. 15: [15] I would add at this point that the parties invariably communicate with each other by email. Accordingly, there is an accurate record of virtually all of the communications between the parties in terms of assessing the level of and quality of the discussions taking place between them as they relate to the important issues of [the child's] parenting. These have been produced by Ms. Fox. Mr. Fox has only produced a few emails on this application that do not, in any event, contradict the narrative found in Ms. Fox's emails. [35] The Father concedes that the first sentence of para. 15 is correct: the parties' communications were by email. [36] What the Father says is that they communicated this way for approximately ten years from the date of the Final Order. It simply was not correct that "virtually all" of the parties' communications were in the record before the judge. Even the Mother's affidavit explained

that she placed before the judge a "sampling" of the communications. [37] Respectfully, this argument is based on a misapprehension of the judge's reasons. [38] Firstly, the judge was correct that the parties' communications were by email and so there was a written record of virtually all of them. This meant both parties had the opportunity to put before the court relevant communications. This was unlike a case where most of the parties' communications are oral and the two parties have very different recollections of what was said, resulting in a conflict in the evidence. In this case, the judge could be confident that each of the parties put before her accurate copies of the email communications they thought were relevant. [39] Secondly, the judge qualified the statement about "virtually all of the communications". She stated that she meant "in terms of assessing the level of and quality of the discussions taking place between them as they related to the important issues of [the child's] parenting". By this, I took the judge as indicating that the communications she received on important parenting issues were complete (as opposed to not containing the whole of an email chain) and were also of such quantity that she was able to assess the level and quality of communications between the parents. [40] The Mother attached approximately 100 pages of email communications to her

affidavits. [41] The Father did not point out any attempted distortion of those communications by the Mother. As mentioned, he simply characterized them differently. [42] I see no basis for concluding the judge made a palpable and overriding error in her fact-finding. Conclusion [43] I would therefore dismiss the appeal. [44] FITCH J.A.: I agree. [45] HUNTER J.A.: I agree. [46] FITCH J.A.: The appeal is dismissed. "The Honourable Madam Justice Griffin"