M.C.C. v. M.B.C.

M.C.C. v. M.B.C.

The applicant failed to prove a material change in circumstances since the 2005 order; the Ministry file as tendered was inadmissible (double hearsay and opinion without proper foundation) and reliability could not be assessed; the child lacks maturity to make his wishes determinative and the existing s.15 report already addressed the parties' concerns; therefore no Views of the Child or updated s.15 report was ordered and the request to vary custody or to remove the prohibition on physical discipline was dismissed.

Citation
2009 BCSC 1758
Parties
Plaintiff: M.C.C.; Defendant: M.B.C.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 December 2009
Procedural Posture
Family Law Custody and Guardianship Variation Application / Application for Variation and Judicial Reasons (decision)
Outcome
Application dismissed: no Views of the Child report or s.15 report ordered; application to vary custody and guardianship and to delete prohibition on physical discipline denied; court remains seized of related guardianship/custody/parenting schedule applications.
Legal Topics
Custody Variation, Views of the Child Report (s.15), Admissibility of Ministry Files/double Hearsay, Best Interests of the Child, Physical Discipline Prohibition, Contempt/non Compliance
Source Language
English
Family Law Child Custody Guardianship Evidence Custody Variation Views of the Child Report (s.15) Admissibility of Ministry Files/double Hearsay Best Interests of the Child +2 more

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Parties

M.C.C.

Plaintiff

M.B.C.

Defendant

Procedural Posture

Family Law Custody and Guardianship Variation Application / Application for Variation and Judicial Reasons (decision)

Legal Issues

  1. 1 Whether there has been a material change in circumstances to justify variation of custody
  2. 2 Whether a Views of the Child report or updated s.15 report should be ordered
  3. 3 Admissibility and reliability of Ministry of Child and Family Development file (double hearsay and opinion)

Ratio Decidendi

The applicant failed to prove a material change in circumstances since the 2005 order; the Ministry file as tendered was inadmissible (double hearsay and opinion without proper foundation) and reliability could not be assessed; the child lacks maturity to make his wishes determinative and the existing s.15 report already addressed the parties' concerns; therefore no Views of the Child or updated s.15 report was ordered and the request to vary custody or to remove the prohibition on physical discipline was dismissed.

Court Disposition

Application dismissed: no Views of the Child report or s.15 report ordered; application to vary custody and guardianship and to delete prohibition on physical discipline denied; court remains seized of related guardianship/custody/parenting schedule applications.

Orders

  • Dismiss the application for a Views of the Child report.
  • Dismiss the application for an updated s.15 report.