R.H.S. v. M.C.

2018 BCSC 485 R.H.S. v. M.C. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.H.S. v. M.C., 2018 BCSC 485 Date: 20180312 Docket: E131722 Registry: Vancouver Between: R.H.S. Claimant And M.C. Respondent Before: The Honourable Mr. Justice Schultes Oral Reasons for Judgment Counsel for the Claimant (appearing by teleconference): K.J. Groves Counsel for the Respondent: J.M. Werb Place and Date of Hearing: Vancouver, B.C. February 22 and 28, 2018 March 2, 2018 Place and Date of Judgment: Vancouver, B.C. March 12, 2018 INTRODUCTION [1] In this family law application, R.H.S., the claimant, seeks an order in furtherance of the requirements of a consent order that he and the respondent, M.C., entered into in December of 2016 dealing with parenting arrangements for their three children. The most important term, in terms of R.H.S.'s current application, is for an update to the report that was prepared pursuant to s. 211 of the Family Law Act, S.B.C. 2011, c. 25, in November of 2016, which heavily influenced the contents of the consent order. He seeks either to have the cost of the update borne by M.C. or shared by the parties. [2] R.H.S. also seeks: · to have M.C. prevented from making any applications herself until she has complied with the existing order and the updated s. 211 report has been prepared; · to have her counsellors and care providers provide the records that cover their dealings with her since the existing order was made, for use in preparing the update; · to have a higher income imputed to her than she has previously reported, and that she pay child support in keeping with it; and · that she provide an updated financial statement. [3] R.H.S.'s position is that M.C. has flouted the rigorous requirements of the consent order, which were intended to place her in a position where her parenting time could be increased, and has refused to share information with him about her efforts. Therefore, an update to the s. 211 report is necessary in order to determine her actual level of compliance. [4] M.C.'s position is that this application is a transparent attempt by R.H.S. to derail the application that she intends to make on March 28 to either have a parenting coordinator appointed pursuant to the order or to increase her parenting time, both of which he has resisted thus far. BACKGROUND [5] R.H.S. and M.C. began living together in 2008 and separated in 2013. Their children are a six‑year‑old and five‑year‑old twins. [6] The s. 211 report was prepared in November of 2016 by Dr. Mary Korpach. She has significant experience preparing reports of this kind. She identified several serious concerns with respect to M.C.'s parenting, most importantly her underlying psychological difficulties, lack of parenting skills, and a tendency to expose the children repeatedly to inquiries and examinations relating to allegations of sexual abuse of them by R.H.S., which the police and Ministry of Children and Families have not found a sufficient evidentiary basis to pursue. [7] To address these concerns Dr. Korpach recommended a program that included: · M.C. retaining a parenting coach with experience in dealing with high‑conflict situations. This coach was to help her with all aspects of her parenting, as well as her co‑parenting relationship with R.H.S. and his current spouse, the communication and level of conflict in which had become dysfunctional. · The parenting coach would then facilitate what was described as "intensive parenting skills intervention". Because the cost of private services on an in‑home basis to M.C. would likely be prohibitive, Dr. Korpach specifically recommended the Family Preservation Program and the Triple P Parenting Program, as well as meeting with a support person described as a "parenting worker". · Because the parenting coach would be unlikely to be able to address the issues under their mandate until M.C. had addressed the underlying psychological issues, she was also recommended to undergo individual therapy "preferably with a psychologist". · Dr. Korpach felt that, "considering the substantial concerns" associated with M.C., a mechanism of joint decision making by the parents using a parenting coordinator "was unlikely to shield the children [from the effects of conflicts between the parents] or ensure their long‑term well‑being." · Rather, she recommended that a parenting coordinator be hired on a limited retainer basis to consider, after one year of the recommended schedule and after M.C. had worked consistently with a parenting coach for at least six months and completed the intensive parenting programs as determined by the coach, as well as at least 25 sessions of individual therapy with a "psychological therapist" who communicated with the coach and coordinator, whether "the children's safety and well‑being would be insured by increasing their time with their mother for one full day", and which I took to mean "by one full day". [8] Dr. Korpach concluded that until M.C. was able to address these recommendations to improve her parenting abilities, the children were "more likely to benefit" from spending "substantially more time" in R.H.S.'s home. To that end, she recommended parenting arrangements that would involve M.C. having the children in her care by picking them up after their school or preschool on Mondays, then dropping them off on Wednesday mornings, plus five hours of designated parenting time Sundays, when she was not working. [9] The substance of these recommendations was preserved in a consent order. The important provisions of the order for the purposes of the present application were that: · Parenting time between the parties was allocated as recommended in the report. · M.C. was to give 24 hours' notice of any inability to exercise her parenting time that was caused by work or illness. · R.H.S. was given decision‑making authority with respect to medical and dental care, childcare, and education, with the proviso that the children's school, preschool, daycare, and doctor were to be located "equidistant" from the parents' respective homes. · M.C. was required to retain a parenting coach with the experience specified by Dr. Korpach by February 1, 2017. Although the order did not restrict her to selecting them, it specified three possible candidates to be considered, including Yuval Berger, whom she ultimately did retain in that capacity. · The parenting coach was given the discretion, as indicated by the use of the word "may", to require M.C. to complete the intensive parenting programs that have been described in the report. · Between December 1, 2016 and December 31, 2017, she was to have "at least 25 sessions with a registered psychologist", who was then defined for the purposes of the rest of the order as "the Therapist". · Perhaps most significantly, the parties were to retain a parenting coordinator "no earlier than December 31, 2017," to consider the issue of increasing M.C.'s parenting time by one full day, as had been proposed in the report. The coordinator, during this process, was to consider the views of the parenting coach, the Therapist, and the children's play therapist (a program of individual play therapy by a therapist experienced with children in high‑conflict situations had also been recommended by Dr. Korpach and made a term of the order). After considering all of this, the coordinator was to decide if M.C.'s parenting time was to be increased in the manner contemplated in the report. · The parenting coordinator was to be chosen by mutual agreement of the parties, provided that a list of possible appointees, who I take notice are all regularly involved in such matters, was considered by them first. · M.C. was made responsible under the order for the cost of the parenting coach, parenting programs, and her therapist. The parties were to be jointly responsible for the cost of the parenting coordinator, although the coordinator then had the authority to apportion the fee for any particular issue between the parties as they saw fit. · Subject to a material change in circumstances, the order provided that neither party was to pay child support to the other. This was stated to be based on M.C.'s responsibility for the children's MSP premiums, their enrolment under her extended medical and dental plans, the cost to her and the benefit to the children of the Therapist, parenting coach, and parenting programs. It was also provided in a separate paragraph that R.H.S. would not be required to pay arrears or retroactive child support or s. 7 expenses, and I infer that this was a further consideration in the parties' agreement that there would be no requirement to pay child support. [10] There were two omissions from the order that have contributed in some respects to the current dispute. First, there was no provision for R.H.S. to receive information about M.C.'s progress with her parenting support and psychological therapy, only the sharing of information with the providers involved, particularly of Dr. Korpach's report, followed by information from the care providers being given to the parenting coordinator. Second, there was no date specified by which the parenting coordinator had to be retained, only the date before which they could not be (although one could certainly infer from the duration of the therapy specified and the fact that the coordinator was not to be appointed before the final date of that therapy that the appointment would follow within a reasonable period of December 31, 2017). There were also no preconditions to the appointment of the parenting coordinator in relation to M.C.'s compliance with her other requirements under the order. CURRENT SITUATION AND POSITIONS [11] In his material R.H.S. describes his ongoing, unsuccessful efforts throughout 2017 to obtain information about the efforts that M.C. was making to comply with her educational and therapeutic obligations under the order. [12] The principal concerns that surfaced from his perspective were that neither Mr. Berger, who was retained as the parenting coach, nor the two therapists who assisted M.C. last year, are registered psychologists, as specified under the order. [13] He determined that she had had only two sessions with Mr. Berger before October of 2017, when his counsel first wrote to her then counsel seeking this information. And, after seeing him for those initial two sessions, in January and February of 2017, she did not begin to see him again until November. As of R.H.S.'s reply affidavit on February 20 of this year, he noted that five of her seven sessions with Mr. Berger were from November 9 onwards. [14] He also determined that the first of the therapists she engaged, Neri Tischler, was seen under the auspices of her employee assistance program, and that M.C. saw her only seven times between April and November. She did not begin to see her current therapist, Samir Shata, until November after which she attended 13 times in November and December, and a further five sessions in January. [15] R.H.S. views these various efforts as indicating an overall lack of commitment by M.C. to complying with the terms of the order, followed by a rush effort late in 2017 to accumulate sufficient parenting coaching and therapy hours to avoid being found in contempt of the order, and to place her in a favourable position for an increase in her parenting time. [16] From his point of view, an update in which Dr. Korpach obtains information from these various care providers to determine the actual efficacy of their efforts with her would be a key aspect of any application by her to increase her parenting time. [17] His application to restrain M.C. from making such applications until those conditions have been met is in furtherance of that position, as is the request for disclosure of the records of her dealings with Mr. Berger and the counselling agency where she sees Ms. Shata, which his counsel concedes could be provided directly to Dr. Korpach rather than released to counsel. [18] The orders sought with respect to imputing an income to M.C., that she provide an updated financial statement and that she begin paying child support to R.H.S., also arise from her alleged non‑compliance with the order. In R.H.S.'s submission, the main reason that she was not required to pay child support once the majority of the parenting time was altered to be with him under the consent order, was the expense that she would have to incur to comply with its educational and therapeutic requirements, expenses that he is concerned she has not incurred to the extent that was agreed. [19] R.H.S.'s counsel candidly indicated that the main objective of the application is to obtain the updated s. 211 report, and thereby to ensure that no applications by her for increased parenting time are heard until it has been completed and the updated information in it has been shared. [20] With respect to the appointment of a parenting coordinator, his position is that it is not appropriate to take that step until M.C. complies with all the requirements of the order. [21] At my request, R.H.S.' counsel obtained timing and cost estimates for further updates from Dr. Korpach. What she has described as a "task‑specific update", which assumes the conclusions of the original report to be correct, would cost between $5,000 and $7,000, be commenced in June and completed in August. A full report involving a complete reassessment, which I do not think is what is envisioned here, would cost between $12,000 and $20,000, be commenced in July and completed in October. [22] In her material, M.C. seeks to provide context for the way in which she has responded to Dr. Korpach's report and the way in which the recommendations were applied in the consent order. [23] She describes being distraught after receiving the report and not initially agreeing with its conclusions, but because her finances were exhausted at that point and further litigation was not in the children's best interest, she felt she had "no real choice" but to implement the recommendations, which she believed were reflected in the consent order. [24] She conceded that it had taken her "some time" to implement them. Ultimately, however, she realized it was best for her and the children to accept and follow what Dr. Korpach had set out. Once she did, she saw that the recommendations would actually benefit her and she began taking an interest in her own mental health and in parenting skills. She says that her self‑education has extended beyond the requirements of the order. [25] To address the concerns that Dr. Korpach had expressed about her mental state, including that she may suffer from delusional or histrionic personality disorders, she obtained a report from a psychiatrist, who saw her in December of 2016 and concluded that she was not suffering from any major mental or personality disorder, including any delusions. She believes she would have provided the assessing psychiatrist with a copy of Dr. Korpach's report, but cannot say for certain. [26] With respect to Mr. Berger, she said that after retaining him for two sessions early in 2017, she told him she could not afford to meet with him frequently at that point because she was in debt from the litigation and needed to buy a new vehicle to drive her oldest child to her new school. She quotes Mr. Berger as recommending that she use all of the free or inexpensive resources that might be available and to begin the parenting courses that Dr. Korpach had recommended. Last fall she completed four parenting courses or workshops, including the Triple P Program identified in the order and lists 11 books about parenting that she says she has read. [27] As to the requirement for therapy for herself, she benefited from her sessions with Ms. Tischler, but was aware that the maximum of seven sessions that she was able to obtain under the Employee Assistance Program (which was three more than they normally provide but was increased with Ms. Tischler's assistance) would mean that she had to pursue additional therapy. [28] She was not aware until November 17 that the preference that Dr. Korpach had expressed for a registered psychologist to provide therapy was actually a mandatory requirement of the order, she says. She initially attempted to obtain the services of a registered psychologist earlier in the year, but was not able to find one who was accepting new patients. She was also unable get in to see any of counsellors who had been recommended by the psychologist who provided the children with their play therapy pursuant to this order. [29] In November, she found Ms. Shata through a well‑known agency run by one of the proposed parenting coaches under the order, Alyson Jones. Although, as I have said, Ms. Shata is not a registered psychologist, but rather a registered clinical counsellor, the material that has been provide indicates that she specializes in areas relevant to M.C.'s situation and she has provided a recent report setting out several positive steps that M.C. has been able to take through their work together so far. This includes increasing M.C.'s emotional stability. As of the last hearing date, she had taken 20 sessions with Ms. Shata. DISCUSSION [30] This application was vigorously contested and included references to numerous past and ongoing issues between the parties, as well as to disputes about the technical requirements of the application process. I have referred only to those matters that I concluded would affect my decision on the actual relief that is being sought. For example, issues with respect to M.C. declining some of her parenting time in 2017, difficulties that arose between counsel in setting her forthcoming application, and each counsel's objections to some of the material filed by the other did not end up having influence on my reasoning process here and I propose to say nothing further about them. [31] On the merits of the issue, I begin by saying that I am unable to agree with the submissions on behalf of M.C. that the statutory threshold for a s. 211 report has not been satisfied by R.H.S.'s application. Section 211 authorizes the appointment of a person "to assess, for the purposes of a proceeding under Part 4, [Care of and Time with Children]", on one of the listed issues. [32] "Proceeding" is not defined in the Supreme Court Family Rules, but s. 1 of the Supreme Court Civil Rules defines it very broadly as meaning: . . . an action, a petition proceeding and a requisition proceeding, and includes any other suit, cause, matter, stated case under Rule 18-2 or appeal. [33] In Markevich v. Canada, [2003] 1 S.C.R. 94, the Supreme Court of Canada adopted a portion of the definition of "proceeding" from Black's Law Dictionary as including, "an act necessary to be done in order to obtain a given end; a prescribed mode of action for carrying into effect a legal right." [34] I find these broad definitions informative and I conclude that "proceeding" in this context includes the overall framework of an existing family law case, even when no application to change a final order is currently pending. Not to be facetious in any way, but other than divorce very little is final in family law if new events unfold, and further applications can be brought indefinitely within an existing family law case. [35] If the legislature had intended to restrict the availability of s. 211 in the manner submitted on behalf of M.C., I do not think they would have used the very broad term "proceeding", but instead something along the lines of "for the purposes of an application or trial under Part 4." It seems unduly restrictive to endow the filing of an application with the power to authorize an application for a s. 211 order when the need for one could legitimately arise at a point when no application happens to be outstanding. [36] It is clear that fishing expeditions must be avoided when resorting to s. 211, but that is something that the judge hearing an application for a report can address when exercising their discretion about whether it would be helpful to have it. It is a different question than whether there is jurisdiction to make the order. [37] So in this case, I conclude that the fact that the consent order was a final one, does not mean that an order of this kind was not available just because M.C.'s application was not yet filed. If the requirements for ordering it are otherwise fulfilled, the stage of the proceedings we are at does not preclude me from ordering a s. 211 report. [38] In any event, R.H.S.'s application with respect to child support amounts to a request to vary a final order, which in itself could properly be accompanied by an application for a report. [39] As an overall perspective on the exercise of the judicial discretion about whether to order a report, I found the comments in A.E.O. v. T.K.O., 2011 BCCA 517, which was cited by both counsel but for different purposes, to be helpful. Those comments were made in the context of an application for leave to appeal, one criterion of which is whether the point on appeal is of general interest to the practice: [7] In my view, the order made in this case is not of general interest to the practice. Rather, it is a discretionary order made in the context of ongoing case management of a high conflict custody/access battle between the parents. The need for an updated custody/access report or assessment is one which will invariably turn on the particular circumstances of the action, the parties, and the welfare of the particular children whose living arrangements are in issue. In some cases, it will be useful, if not necessary, to have a more current custody/access report prepared. In other cases, the process of updating a report may actually risk causing more problems than it resolves, for example, by further upsetting the children whose custody is in issue. Further, in some cases, and I am not saying this is one, the application for updating a report may simply be a further tactic in an ongoing war between the parents. These are but a few of the reasons which make the decision of whether to require an updated report one which must be tailored to the facts of the case. I also note, parenthetically, that the cost of preparing such reports is not insignificant, particularly for parties, like these, who do not have significant financial resources. [Emphasis in original.] [40] I agree with the submissions on behalf of M.C. that a s. 211 report is not intended primarily to monitor the compliance of the other parent with a previous order. That level of compliance will be part of a report's scope only to the extent that it enables the author to address one or more of the questions set out in s. 211. [41] In this case, M.C.'s failure to fulfil the specific requirements of the order as to the counselling and training she was to have taken could lead to the conclusion that her ability to meet the children's needs, based on the shortcomings that Dr. Korpach originally identified, has not improved sufficiently to justify an alteration in the parenting arrangements. Conversely, her forthcoming application will seek to demonstrate that the benefits of the counselling and other support that she has obtained since Dr. Korpach's report have actually produced the kinds of improvements that the report envisioned. In other words, she will seek to demonstrate that she has fulfilled the spirit of the order, if not its letter, and that the best interests of the children overall favour an increase in her parenting time. Both positions raise the question of her ability to meet the children's needs and both could properly potentially be addressed by an update to the original report. [42] My concern is not so much whether a report might be useful - certainly it might be. It is instead whether it is clear enough at this point that a report will actually be required in order to address the forthcoming application to justify the expense and delay that it will cause, even the targeted update spoken of by Dr. Korpach, bearing in mind the overall means of the parties and the general desirability of resolving parenting issues promptly. [43] One of the applications that M.C. will have the court consider, as I understand it, is to have the parenting coordinator contemplated under the order appointed. If the order is then followed, it is that coordinator who would consider her efforts to improve her psychological condition and parenting skills, and then decide whether to increase her parenting time for another full day. [44] I have concerns about whether this delegation is permissible. Parenting coordination is not intended to establish or change parenting arrangements, but rather to assist parents in resolving disagreements that arise with regard to how parenting arrangements or orders are put into effect: see M.H. v. C.S., 2013 BCSC 2232 at para. 36. [45] However, it is also possible that the application judge will find that that provision of the order does no more than involve the coordinator in approving and implementing a previously‑arranged potential increase, despite the degree of judgment and discretion that would be applied by the coordinator, amounting to a form of adjudicative function. That was unquestionably Dr. Korpach's vision of the regime that would be set up, although of course her expertise is not primarily legal, and she contemplated the coordinator assessing what had been done by M.C.at that point, rather than matters coming back to her for an update before it was implemented. [46] My point is that in such a case, in which the court accedes to the regime under the order and has the parenting coordinator appointed, the court itself will have no need of any additional information that Dr. Korpach could provide, nor does the order as it presently stands require the coordinator to have any such update. [47] If the application judge has the same concerns I have about the proposed delegation to the coordinator, then they may have to consider a companion application, which I understand will also be made by M.C., for the court to implement the term of the consent order providing for increased parenting time, having regard to the criteria that Dr. Korpach envisioned the coordinator applying. [48] In that case, the application judge might consider the material showing M.C.'s efforts to date and find, if it is no more detailed and persuasive than the current material, that it does not meet the threshold for ensuring the well‑being of the children contemplated in the order and dismiss the application. What I wish to emphasize is that in that situation it would be M.C. who would bear the consequences of any insufficiency in her material to meet the onus that currently rests on her under the order. [49] On the other hand, the judge may conclude that on its face her material does meet the threshold and, after considering whatever evidence and submissions are provided by R.H.S. opposing it, conclude that no further expertise is required to inform the decision and increase her parenting time, either as contemplated in the order or in some other way. [50] It is only in the final potential situation, in which the judge cannot resolve the order by considering the material filed and concludes that it is not a situation in which the absence of sufficient material should be resolved against M.C., that a s. 211 report might be required. [51] Thus, the need and usefulness of an update is contingent on an outcome of the forthcoming application that is only one of several equally realistic possibilities. Put another way, it is equally if not more likely that an update will not actually be required. [52] As a result, I conclude that the application for a s. 211 report is premature at this stage and it is dismissed, with liberty to renew it in response to any application that M.C. may make to increase her parenting time. [53] It follows that there is no current need to obtain information from her parenting coach and therapist, so that application is also dismissed. If a s. 211 update is ever ordered, I expect its parameters will certainly include canvassing those care providers in any event. [54] It also follows that there is no current basis on which to restrain M.C. from bringing further applications until a report is completed. As to her lack of compliance with the consent order, the application judge always has the discretion, the authorities in support of which are well known, not to hear an application from a party who is found to be in contempt of an existing order. Whether such a finding is made would depend on what the application judge makes of the mental state underlying her non‑compliance with the letter of the current order. [55] With respect to child support, I am not persuaded at this stage that the basis on which no support was required from M.C. under the order has yet been undermined by subsequent events, to a degree that amounts to a material change in circumstance. Much depends on how the application judge views the intent underlying M.C.'s lack of at least technical compliance with its terms, how much additional therapy or support she is required to receive, its cost, and whether the judge considers it is likely to benefit the children to a degree that it continues to supplant the usual requirement for child support payments, as was the conclusion underlying the consent order. Therefore, the applications to have income imputed to M.C. and the table amount support paid by her based on it, as well as for updated financial statements, must also be dismissed. [56] As part of his submissions, M.C.'s counsel suggested that I could order the appointment of the parenting coordinator under the heading of "such further and other relief as This Honourable Court deems just" in R.H.S.'s Notice of Application. In the absence of some authority justifying that approach, I would not consider it proper to make an order to which a party is opposed pursuant to such general language in their own application. An application by the opposing party is needed. [57] Since time will not permit full submissions on costs today, I will say that my preliminary view is that M.C. should receive her costs in any event of the cause, but that those costs should only be in relation to the first two‑hour hearing period on February 22. I think that this application could realistically have completed within that time, and R.H.S.'s counsel made notable efforts to achieve that by restricting the length of his submissions. However, if either counsel takes a different view, they can arrange to make submissions on the issue of costs of this application, either orally or in writing, as they prefer. The Honourable Mr. Justice T.A. Schultes