Gupta v. Gupta

2001BCSC0649 Citation: Gupta v. Gupta Date: 20010507 2001 BCSC 649 Docket: F991874 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

LORNE ELIZABETH GUPTA

PLAINTIFF AND:

ARVIND GUPTA

DEFENDANT

REASONS FOR JUDGMENT

OF THE HONOURABLE MR. JUSTICE HOOD Counsel for Plaintiff T. Stowe Counsel for Defendant K. Basran Date and Place of Hearing/Trial: April 26, 2001 Vancouver, BC [1] This is an appeal by the Defendant of part of an Order dated March 13, 2001, of a Learned Master, whereby an application by the Plaintiff for an investigation and Report, pursuant to s.15 of the Family Relations Act, R.S.B.C. 1996, c.128, was dismissed; and the parties were ordered, in effect, to obtain their own Reports and to accommodate each other to do so. The parties agree that to succeed the Defendant must show that the Learned Master was clearly wrong. [2] There are other matters before me which have either been consented to, or adjourned, or dismissed, again by consent. The matter is set for trial on May 28, for five days. [3] The issue before me is a narrow one. The parties have three daughters, ages 8, 12 and 13. They separated in 1999, after entering into a written Interim Separation Agreement. They have lived under the Agreement since that time. It provides that they will have joint custody, and that the children will rotate between them every two weeks; that is to say, that the children will spend two weeks with one of them and then two weeks with the other. [4] The Plaintiff remains concerned that the present regime is creating emotional problems with the children, particularly the younger one both at

home and at school. She relates this to the fact that the children see the Defendant every day, even during the two week period when the children are with her. She feels that two weeks away from her at a time is too much, and is telling on the girls emotionally. [5] The mother says that the children have evidenced emotional problems in her presence, and have demonstrated a lack of focus in the classroom and other behavioural problems. She believes that the children are telling her one thing and the father another; that they are torn between loyalties to their parents. She does not believe that she is getting the full story, or that the father is getting the full story. She does not propose a drastic change in the present regime. She believes that one week on and one week off would more likely facilitate the emotions of these young girls. [6] The Defendant father simply says that the children are thriving under the regime, and do not display any problems whatsoever. Whether or not this is so cannot be decided on this Motion. It is for the Trial Judge to decide. And given the subject matter, it is my view that the Trial Judge should have the assistance of the investigation and Report of an independent s.15 Expert. [7] It is not necessary that I decide who is right, or what the situation is in fact. There is some evidence before me, and which was before the Learned Master, which

at the least raises the issue of whether the regime is having a negative emotional effect on the three children, perhaps in varying degrees. And in my view that fact is determinative. And I do not have to decide whether or not Linton v. Clarke (1994), 10 R.F.L. (4th) 92, a decision of the Divisional Court of the Ontario Court of Justice, is now the law in British Columbia. If it is, it does not deter from my decision in this matter; for, using its terminology, I am satisfied that in the present case there are clinical issues which in my view require investigation or consideration by an Expert. [8] I turn now to paras. 4 to 7 of the Master's decision, which set out what he did, and the basis of the appeal: (4) A s.15 Report: I tend to agree with the Ontario Court in Linton v. Clarke that s.15 Reports should not be ordered unless there is some clinical reason for it. No doubt there will be many exceptions to that principal, but I do not see any reason to make any exception here. (5) On the other hand, there is no obvious reason why either party should not retain their own professional if they want to get an Expert Report. The application for a s.15 Report is dismissed, but there will be an order that both parties make themselves and the children available at all reasonable times for all reasonable Assessments requested by a properly qualified Expert instructed by the other. (6)

That way, if the Plaintiff does decide to proceed, she can go ahead with her own Report. It should not be allowed, in my view, absence some other factors, for the husband to wait until he sees what the Report says, and then ask for an adjournment so that he can get one himself. If he decides he does not want one, he should be stuck with the decision, because he can already anticipate, pretty much, without knowing the details of what the Report will say, he can anticipate the sort of issues the Report will deal with. (7) So, as I say, if the mother does decide to go ahead and get one at her own initiative, and at her own expense, obviously she can do so. She can come to trial with it, and the husband, if he has not volunteered to join in one or get his own, will be without the advantages of that sort of analysis. That is up to him. It is the Defendant's position that the Learned Master erred in law and in fact in ordering that the parties be at liberty to retain the services of properly qualified psychologists to prepare their own Custody and Access Reports pursuant to s.15. [9] Ms. Basran for the Defendant submitted, in effect, that once the Master found that there was no clinical reason for a s.15 Report, that should have ended it. She, of course, supports that finding. She submitted that the Master erred when he then ordered or directed the parties in effect to obtain their

own s.15 Report. In addition to arguing that there were "no psychological issues" demonstrated before the Master, Counsel also challenged the terms attendant on the two Reports, as set out in paras. 6 and 7; for example, that they force the Defendant to obtain a Report. If he does not then he is "stuck" with the Report of the Plaintiff's chosen Expert. Counsel submitted that the Order is clearly wrong. Having dismissed the application for a s.15 Order, an Order granting something far more intrusive than that which was dismissed is then made. [10] Ms. Stowe, for the Plaintiff, commenced by submitted that it was implicit in His Honour's Reasons that he was making an Order pertaining to Experts pursuant to Rule 40A, and not pursuant to s.15. She then reviewed the facts in some detail pertaining to the Plaintiff's assertion that the children were having emotional problems, and that the source, particularly with regard to the 8 year old, was the lengthy period of time that they did not see their mother; that because of the fact that the children went to the father's home after school, even when they were living with the mother, they were not even spending 50% of the time with her, as had been the plan. [11] I observe here again that I am satisfied that there was sufficient evidence before the Master, as before me, to delineate an issue pertaining to the emotional status of the

children, and its link to the time spent with each parent, such that a s.15 Report dealing with it would be of assistance to the Court. As I said earlier, I do not find it necessary to delve into the question of who is right, and what the precise facts are. Clearly the parties do not get along, and it is unlikely that either will give me a clear picture of the situation. In any event it is not necessary that they do. The purpose of a s.15 Report is to assist the Court in its task, and it is for the Court to decide whether such a Report will be of assistance, based on the subject matter, the evidence and the assertions of the parties before the Court. And when the family matter concerns the evidence or views of children, or their emotional state, matters of much importance to the Court, the threshold requirement for the obtaining of an Assessment and Report of a neutral s.15 Expert, to assist the Court, should be minimal. [12] Counsel for the Plaintiff referred me to two cases which have some relevance on the subject matter of s.15 investigations and Reports. In Goudie v. Goudie (1993), Carswell BC 1408, my brother Parrett, J. had the following to say, although dealing with the question of hearsay in such Reports, in para. 33: In family law cases generally, and in custody and access cases in particular, the issues are often obscured by the emotional overtones of such

proceedings. In such circumstances, the Court's power to order an investigation by an independent person with specialized training is an invaluable tool. The procedure anticipated by s.15 is one in which the investigator interviews the people involved, observes the relationship and the reaction between the spouses and the children, and reports those observations, facts and impressions to the Court. In the truest sense these individuals act as the Court's eyes and ears in what are all too frequently highly emotional areas of conflict. The safeguards built into the process include the early delivery of investigation Reports, the opportunity to call the investigator to the witness stand, and the opportunity to respond to the Report generally by other avenues. (My emphasis). [13] And in Tucker v. Tucker (1998), 155 D.L.R. (4th) 103 (Alta.C.A.), the Court had a similar problem before it. A mother applied to vary a custody and access arrangement in respect of a nine year old child. The Chambers Judge ordered an upgraded Psychological Assessment of the child at the mother's request. The father's appeal was unsuccessful. [14] In Tucker, Conrad, JA., speaking for the majority had this to say in para. 26: The application for a Psychological Assessment must not be confused with an application for the variation of custody and access. An application for an Assessment is an interim step

brought within the larger application for use in the trial of the issue. The evidence required to support an Order for an Assessment need not be the same as the evidence required to meet the test for change under s.17(5). While an Assessment ought not to be ordered as a "fishing expedition", it is properly ordered where, as here, there is some evidence of changes in the child's life, giving the Court reason to believe that a further investigation of the child's circumstances is warranted. The Court is seeking the assistance of objective Expert evidence to aid it in making the determinations required by s.17(5). It is entitled to that evidence. (My emphasis). And in para. 30: An Assessment may establish a serious change in the psychological well being of a child. In fact, it may be only way of ascertaining whether the day-to-day changes which have occurred since the original order was made are negatively affecting his or her psychological well being and resulting in a change of condition. The child's needs and well being cannot always be determined by how well he or she is doing in school, or by the fact that he or she has friends. The appearance of success does not necessarily equate with inner security. Sometimes, despite any change in the visible exterior circumstances, the changes within the child justify reconsidering the custodial and access regime in which he or she

lives. (My emphasis). And in paras. 38 and 39: Child custody cases are unique. For many years, the Courts appointed an amicus curia (paid for by the Government where necessary) to act on behalf of the child. The amicus hired a lawyer, obtained home study Reports, or Psychological Assessments for the use of the Court, and called evidence on behalf of the child.... This dispute is not one that involves the interest of the litigants alone. It involves a child . The adversarial system does not always apply to custody issues in the same strict sense that it applied to other matters because of the Court's overriding duty to children. The appointment of an Expert to perform an Assessment in a custody case has the same objective as the appointment of an amicus curia. It is to ensure that the Court obtains objective evidence to assist in its determination of custody and access issues. There is no valid reason that the process of obtaining evidence should be any different in a variation application than in the original application, except that it should not be merely re-litigation of an unfavourable decision. Governed by the best interests test, the Judge has a discretion to exercise. (My emphasis).

DISCUSSION [15] In this case the Trial Judge will be required to determine finally a number of issues between the parties, including the appropriateness of the co-parenting arrangement. While the defendant wishes to continue the regime agreed to by the parties on separation, the Plaintiff wishes, at least at this time, to change the regime in two respects: first, she wishes to change the children's two week rotation between the parents to one week, and second, she wants the children to come to her home from school, where they will be met with the parties common nanny, during the mother's two weeks with the children. At present the children go to the father's home, meet the nanny there, and wait her arrival to pick them up. [16] The basis of the Plaintiff's position is that the children spend more than 50% of their time with the father, and that two weeks at a time is too long for them to be away from her. The father, as I say, opposes any change. [17] A primary issue for the Trial Judge's determination will be whether the regime should remain as it has been since 1999, or whether it should be changed in the manner sought by the Plaintiff or otherwise. The Plaintiff will testify, and perhaps call evidence, of conduct on the part of the children demonstrating emotional changes as a result of the present regime. And the father will testify, and perhaps call evidence to the

contrary. In any event, the emotional makeup of each of the three children, in the context of the regime, will be a primary issues before the Court. And in my view, on the evidence which was before the Learned Master, the Court should have before it the objective and independent Assessment evidence of a s.15 Expert, skilled in ascertaining the true views, beliefs and evidence of the children in relation to their parents and to the regime, or who at least can opine as to whether a problem affecting their best interest is present. And the Court will be assisted in its task. [18] The purpose of a Court ordered s.15 Assessment and Report, of course, is somewhat different from the kind of reports dealt with under Rule 40(a). It is to assist the Court in determining the issues before it, including the paramount issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. The parties have no say in the matter, other than to consent to a particular investigator if they are both satisfied with him. The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every

issue, and whose evidence is often found to be coloured to say the least. [19] The more general Experts, and their Reports referred to in Rule 40A, of course, are quite different from the s.15 Experts and Reports. They are retained as a matter of right and without the Court's involvement. Relatively speaking, they represent their client's interests and lack the impartiality and objectivity of the Court approved Expert. If used in a family case, that is if each party retained his or her own Expert, the Expert evidence would not necessarily be of assistance to the Court, in ascertaining the true picture and what is in the best interests of the children, but could well simply add to the morass of conflicting evidence and assertion on one side or the other. In my view, the evidence of the neutral s.15 Expert generally is to be preferred. [20] Turning to the Order of the Learned Master, it seems to me to be implicit in his Reasons that he was of the view that some Expert evidence on the issues before the Court would be of assistance to the Court. If this is so, then, with respect, he should have ordered a s.15 Report. If this is not the case, then it is difficult to understand the purpose of his order with respect to the parties retaining their own Experts. While each would have his or her own champion to advance his or her own position, the Reports of these Experts would not perform the role of a s.15 Report, and might well be greeted with some reservations for the reasons discussed above.

DISPOSITION [21] It is my opinion that the Learned Master was clearly wrong when he refused to direct a s.15 investigation into the emotional well being of the children in the context of the present regime, and possible alternatives if need be, so as to assist the Court in determining these and related issues. There was, as I have found, sufficient evidence before him (and little was needed, given the subject matter) that the children's psychological well being may have been affected by the regime followed since the parties separated, particularly the kind and amount of time spent with each parent, or at least that a s.15 investigation into that subject matter was warranted. [22] The appeal is therefore granted and the Order set aside. An investigation pursuant to s.15 is directed of the matters discussed, that is to say, whether the regime implemented by the parties since 1999 has resulted in negative emotional changes in the children, contrary to their best interests, and if so, what changes to it should correct the situation. The Report will be served pursuant to the provisions of the Rule. [23] Costs may be spoken to if need be. "S.W. Hood, J." The Honourable Mr. Justice S.W. Hood Vancouver, B.C. May 7, 2001