J.L.H. v. P.J.H.

2017 BCSC 561 J.L.H. v. P.J.H. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.L.H. v. P.J.H., 2017 BCSC 561 Date: 20170404 Docket: E48664 Registry: New Westminster Between: J.L.H. Claimant And P.J.H. Respondent Before: The Honourable Mr. Justice A. Saunders Reasons for Judgment Counsel for the Claimant: W.C. Vaughan Counsel for the Respondent: M.J. Anderson Place and Date of Hearing: New Westminster, B.C. March 9, 2017 Place and Date of Judgment: New Westminster, B.C. April 4, 2017 [1] The parties appeared before me in chambers on March 9, 2017, on an application brought by the Claimant - the mother of the parties' eight-year-old daughter, E. - for an interim order varying a previous order, made in Provincial Court, so as to change both E.'s primary residence and the current parenting schedule, pending a trial set to be heard in New Westminster over four days commencing August 8, 2017. [2] I have anonymized the parties to maintain their daughter's privacy. Background [3] At present E. resides primarily with her father, the Respondent, on the Lower Mainland, and sees the Claimant, who lives on Vancouver Island, three weekends a month, plus specified annual vacation time. This regime was ordered by Her Honour Judge Pothecary of the Provincial Court of British Columbia on August 29, 2013 (the "Pothecary Order") following a three-day trial held on August 7, 28, and 29, 2013. [4] The terms of the Pothecary Order were precisely the opposite of what had been recommended to the court in a psychological assessment report prepared for the parties, on their joint request, by the psychologist Dr. Michael Elterman on July 26, 2013 (the "First Elterman Report"). [5] The First Elterman Report was based on psychological testing and interviews of the parties; an interview of E., who was then five years old, and observations of E. with each of her parents; interviews of collateral witnesses for each party; and a review of pertinent documents provided by counsel. He recommended that the best parenting arrangement for E. would be shared parenting, if her mother were to relocate to the Lower Mainland. Alternatively, he recommended that E. reside with her mother on Vancouver Island, and spend three of every four weekends with her father. Dr. Elterman's recommendation was based, in part, on concerns as to whether E.'s father, who has a learning disability, would be able to provide her with appropriate educational support. [6] The parties proceeded to trial the following month, and, as I have stated, the Pothecary Order was to the opposite effect of Dr. Elterman's recommendation. [7] A transcription of Pothecary P.C.J.'s oral reasons for judgement has not been prepared, and neither party has given evidence as to what explanation was given by the honourable trial judge in respect of her decision. Therefore, the reasons for her deviation from the psychologist's recommendation are not known. [8] The child has moved back and forth between her parents more or less under the terms of the Pothecary Order since then. It is clear from the subsequently filed affidavits that there is ongoing conflict between the parties as to the proper assessment of E.'s needs and how those needs should be addressed. [9] I note the parties were divorced by way of a desk order made by a judge of this court on November 10, 2014, in an action filed in the Victoria Registry. [10] In January 2015, about a year and a half after the Pothecary Order was granted, the Claimant filed a Notice of Application in this court seeking an updated s. 211 report by Dr. Elterman as to the needs of the child and the ability and willingness of each party to satisfy those needs. The application was premised on purported changes in circumstances giving rise to concerns on the part of the Claimant as to whether the current parenting arrangement was in E.'s best interest. The application was opposed by the Respondent. By way of a consent order filed on February 24, 2015, the Provincial Court action was consolidated with the Supreme Court action, and the file transferred from Victoria to New Westminster. [11] The Claimant's application for an updated s. 211 report was heard before Mr. Justice Ball on December 15, 2015. Ball J. ordered that the parties "jointly retain Dr. Elterman to update the s. 211 report", with the Claimant being responsible to pay the costs of the updated report in the first instance, "with liberty to address the issue of costs". The parties were then unable to agree on the scope of the investigation to be undertaken by Dr. Elterman; that issue was ultimately resolved through a consent order pronounced by Master Tokarek on May 11, 2016. [12] On May 10, 2016, E.'s classroom teacher, her resource teacher, and the school principal jointly issued a signed memorandum, warning that they were "experiencing a crisis situation in terms of best serving E. and her family". The memorandum noted that E. had been at the school since kindergarten in 2014, and in 2016 was in a Grade 1 and 2 split class with 23 other students. Concerns with her academic progress had become apparent in 2015, and E. had received Learning Assistance and Speech and Language Pathology support through her Grade 1 and 2 years. The memorandum noted several specific cognitive/learning issues; concerns that she was frequently upset, socially withdrawn, and had difficulty relating to her peers; and concerns with her constant tip-toe walking, affecting her gross motor ability. The memorandum concluded with a request for E. to be referred for further testing in order to have her needs assessed. The Second Elterman Report [13] Dr. Elterman's updated report (the "Second Elterman Report") was released on December 24, 2016. He maintains - I do not think it unfair to the Respondent to say, strongly maintains - his initial recommendation that E. live primarily with her mother, and that her mother be given primary parenting responsibility. [14] This recommendation is based on Dr. Elterman's concerns as to whether E.'s educational needs have been and will be adequately met if the present arrangement continues, and as to the potential for parental alienation. [15] Regarding the former point, Dr. Elterman attempted to interview the teachers at E.'s school, but they elected to put their comments in writing, in a letter dated December 6, 2016, which letter he considered as a collateral source in preparing his report. Dr. Elterman states that E. has continued to fall behind in school, to the point that she is now almost two years behind where she should be academically. [16] Dr. Elterman recounts his discussion with the Respondent, during their most recent interview on July 1, 2016, as to why the Respondent had not arranged for E. to have a psychoeducational assessment. The Respondent explained that it was a matter of finances, but said that he would try to find the money if Dr. Elterman thought it was important. Dr. Elterman describes the Respondent as minimizing the seriousness of E.'s academic situation: In speaking to [the Respondent] about [E.'s] school progress I note that he minimizes the problems based on what the school staff have said. He describes a lack of progress as a "rough patch" but that she has now become an average student. If one looks at the second letter of the school [the December 6, 2016 letter], this is clearly a significant misreading of her lack of progress. [17] Dr. Elterman is of the opinion that if she lived with the Claimant, E. would receive the necessary psychoeducational testing, as well as the specialized, more intensive tutoring that she is "likely to need". [18] As to the risk of future parental alienation, Dr. Elterman makes note of the following comments made by E.: Asked what advice she would give her mother about being a better parent, she says that her mother should "love me more". Asked to explain, she says that her mother could give her more hugs and kisses. [E.] says that her mother does try and kiss her but she ([E.]) pulls away and she does not know why she does it Asked whether she is happy with her life, she says that sometimes yes and sometimes no because she gets sad when she has to go to mom. Asked why she gets said when she goes to mom, she says "because she can be horrible to me". Asked what her mother does, [E.] says "she acts like she is nice but she is really not". Asked how she would know this, she says "I can tell by her face". Asked what she sees, she says that her mother is actually angry. She adds spontaneously "also what I don't like about her is that when I was younger she kidnapped me" I asked how she knows this and she said "she did it when my dad was at work". When I enquired how she knows this, she responds "me and dad and nanny read a book about it and we talked about it". [E.] goes on to say that when her mother met her father she took hundreds of his dollars. She says that her dad used to be rich and now he only has a little bit of that money. [E.] says that her mother went to the bank and took all of her dad's money and now she has it. [E.] says that her dad read this in the book [19] Dr. Elterman concludes that E. has clearly been told a great deal of inappropriate information. He finds there is a real concern that this information has negatively impacted E.'s trust in and relationship with her mother. He also finds there to be evidence in speaking to E. that she had been told by her father not to tell Dr. Elterman certain things in the interview. Dr. Elterman states: I am concerned that [E.] has been talked to and involved in the adult conflicts by [the Respondent]. This does not come simply as an allegation from [the Claimant] but rather it is corroborated by [E.] herself when she makes statements that she could only have heard at her father's home and then says that she is told this or information was read to her about certain incidents which negatively reflect on [the Claimant]. I am concerned that over time if this continues that there might be access refusal and what the literature refers to as Parent Alienation where [E.] increasingly feels that she has to choose between her parents. Positions of the Parties [20] The Claimant acknowledges that the courts are usually reluctant to vary a parenting arrangement on an interim basis through a summary chambers application, particularly where the trial is not far off, given the difficulties inherent in determining what is in a child's best interest on the basis of conflicting affidavit evidence. However, it is submitted that the case for varying the Pothecary Order is very strong; given the Second Elterman Report and the May 2016 memorandum from the school, there is a considerable apprehension of serious harm to E., in terms of her psychological and emotional well-being, and in terms of the potential for alienation, if the status quo is maintained. [21] In relation to the concern about potential alienation, the Respondent denies knowingly making negative or disparaging comments about the Claimant in E.'s presence. The parties have consented to an order providing that neither one shall discuss the litigation with E., and shall not speak disrespectfully of the other in E.'s presence or allow anyone else to do so. It is submitted that this should be sufficient to address the concern raised by Dr. Elterman. [22] As to E.'s learning difficulties, the Respondent takes issue with the characterization of her dyslexia as a disability. He asserts in his fourth affidavit, filed February 24, 2017, that his own perspectives as a dyslexic person put him in a unique position to assist her with the challenges she faces. He says that as a result of his hard work, her elementary school recently agreed to do a psychoeducational assessment, and reiterates that a private assessment has been beyond his financial means. [23] In this most recent affidavit, the Respondent also raises allegations - new allegations, in the context of the present Supreme Court proceedings - that the Claimant was physically violent towards him during their relationship. He concedes that E. was probably so young at the time that she would have no memory of these incidents, and that the Claimant never struck E. during their relationship. Yet, he expresses concern as to the Claimant's ability to cope with the stresses of parenting, and fear that she might one day break down and direct anger and violence towards their daughter. [24] The Respondent did not disclose this evidence, or these concerns, to Dr. Elterman. This, he says, was due to him feeling embarrassed and ashamed. [25] The Claimant says that this is recent invention on the part of the Respondent, sparked by the recommendations in the Second Elterman Report. The Respondent, however, has produced an affidavit of a friend of his, a Mr. Stier, sworn in 2013 and filed in the Provincial Court proceeding, describing incidents wherein the Claimant exhibited anger towards the Respondent and acted violently. Analysis [26] The Second Elterman Report, and the school memorandum, raise serious concerns as to whether E.'s wellbeing is endangered by the current parenting arrangement. These concerns must be addressed quickly. [27] I am, however, very concerned that a judge of the Provincial Court appears to have been sufficiently persuaded by the evidence heard at trial that she disregarded Dr. Elterman's recommendation. It is most unfortunate that a transcript of the reasons for judgment has not been made available. [28] Without that transcript, and without having the opportunity to gauge the parties' credibility with respect to the allegations of physical violence and other concerns discussed in these reasons, I am in no position to make a thorough assessment of the potential risk to E. of any change in the status quo. [29] Conversely, the risk of harm to E. through maintaining the present order for only a few months, until trial, would appear to be relatively small. I cannot say that such risk outweighs the harm that would result from uprooting E. from her school before the end of the school year and disrupting the current patterns of her life, particularly if these changes end up being only temporary. [30] The application is therefore dismissed. [31] However, it is clear that this trial must proceed as scheduled so that E.'s best interests may be properly determined and protected. In particular, the Respondent's recent assertion - or re-assertion - of his concerns regarding the Claimant's conduct should not, if at all possible, lead to adjournment of the trial. I am therefore making the following additional orders: a) The parties are forthwith to order the preparation of a transcript of the reasons for judgment of Pothecary P.C.J. in respect of her order of August 29, 2013, on an expedited basis, the cost of which transcript is to be shared jointly; b) The Respondent is at liberty to provide Dr. Elterman with the following further information, and to solicit from Dr. Elterman his opinion as to whether any of the information disclosed therein leads him to change his recommendation regarding E.'s living situation. If the Respondent exercises this liberty, copies all of the following information must be provided to Dr. Elterman: (1) The transcript of Pothecary P.C.J.'s reasons for judgment; (2) Paragraphs 1-9 of the Respondent's Affidavit #4 sworn February 24, 2017; (3) The February 10, 2013 affidavit of Mr. Stier as filed in Provincial Court; and (4) Paragraphs 1-3 of the Claimant's Affidavit #9 sworn March 1, 2017. c) If his opinion is sought as stated in (b), Dr. Elterman is directed to provide his opinion as to whether there is any change in his recommendation by way of a conference telephone call with the parties and/or their counsel, prior to trial; and d) The cost of items (b) and (c) is to be borne solely by the Respondent. "A. Saunders J."