Did you know that an appellant from a Provincial Court final order can have two “kicks at the can”, as an unsuccessful appeal to the British Columbia Supreme Court can be appealed to the British Columbia Court of Appeal?
A convoluted example of a double appeal is found in Kane v. Profitt 2018 BCCA 106 where the Provincial Court made an order prohibiting the mother of a special needs child from relocating from Vancouver to the Okanagan. The mother testified that her plan was to move in with her new partner, a dentist, who had arranged a position for her as a dental hygienist at a clinic he owned, at more than twice her former salary. After the order denying the move was made, the mother continued with her plans, leaving her 6-year-old son with his father.
The status quo prior to the move application was that the parties shared joint custody and joint guardianship with primary residence of the child with his mother. The father was an active, involved father who had parenting time every Wednesday overnight, alternate weekends, and every Friday overnight during weeks he did not have weekend parenting time.
In a 4-day trial, the Provincial Court Judge was concerned that no evidence was proffered with respect to several key issues including the lack of objective “medical or psychological evidence” regarding the potential impact of a move on the child who had been diagnosed with “chronic adjustment disorder with disturbances of conduct and disruptive behavior disorder”; whether the new school district would be able to provide the services received by the child in Vancouver; and whether specialized health care professionals were available in the new locale.
The court was also concerned that it had no evidence of the child’s views. The father had brought an application for a s. 211 report but had not proceeded with it in an effort to deal expeditiously with the relocation application. The judge also pointed out that it would have been helpful if the mother’s new partner, who was in court, had testified as to his relationship with the child and his intentions with respect to his relationship with the mother. The mother’s case was comprised of only her evidence.
Ultimately, the court found that the mother’s outlook was overly optimistic and that her evidence amounted to “guesswork” on the likelihood that the move was in her son’s best interests.
On the mother’s appeal to the Supreme Court, which took place over seven non-consecutive days between October 2015 and September 2016, the Justice engaged in an unusual “hands on” process, persuading the parties to obtain new evidence in the form of a “views of the child” report, and provide evidence of what had transpired since the Provincial Court denied the mother’s application and her subsequent move, without her son. It is noteworthy that the invitation to present new evidence was done in the absence of an application requesting it.
But acceding to the justice’s remarks, the parties presented new evidence including a psychoeducational report which identified the parents’ conflict as one source of the child’s maladjustment; the child’s grade two report; and a report from the Vancouver School Board Learning Centre. Later, the court received child custody psychologist Dr. Elterman’s “views of the child” report which was of little assistance to the court as Dr. Elterman was not charged with analyzing the needs of the child or his best interests. However, the young child did express a wish to spend more time with his mother.
Despite the additional evidence, the justice advised the parties that he was not able to find the requisite facts and suggested to their counsel that the matter be stood down for 20 minutes to allow the parties to determine if they wanted the court to conduct a trial with respect to the relocation. At the conclusion of the hearing the justice adjourned the appeal for a week and said he would have a decision on the appeal at the next hearing.
At the resumed hearing date, rather than making a decision on the appeal, the justice pronounced an interim order that commencing the following month, the child was to be relocated to the mother’s Okanagan residence until further order of the court and that at the end of the 2016 school year a supplementary “views of the child” report was to be completed by Dr. Elterman. The order also provided that in August 2016 a final order on the appeal would be rendered, upon receipt of additional evidence and submissions.
Not surprisingly, the father appealed this order. At this point a comment about the costs of this exercise must be mentioned. After a 4-day trial in the Provincial Court and a 7-day appeal hearing in the Supreme Court, the stated objective of the Supreme Court Family Rules to “secure the just, speedy and inexpensive determination of every family law case on its merits” is conspicuous in its absence. While there is no doubt that the Supreme Court justice attempted to do right by the parties, his approach was the subject of comment when the Court of Appeal weighed in.
The Court of Appeal first noted that nothing in the Family Law Act or the Supreme Court Family Rules abolishes the test for the tendering of new evidence on appeal, citing Stav v. Stav 2012 BCCA 154 where the court observed that “allowing such evidence without structure or limits takes an appeal beyond the record of the trial, and beyond the error-seeking function of the Court…”
The Court of Appeal found that the court below “created a new evidentiary record based on post-trial events”, making new findings of fact to support the variation of the Provincial Court’s order and determined that the Provincial Court fell into error by failing to order a “views of the child” report. However, the Court of Appeal then stated that having received such a report the Supreme Court justice failed to apply the law with respect to the admission of the report, relying on the parties’ consent, disregarding the judge’s gate-keeper role to determine if the proposed evidence was properly admissible.
**This article was first published by LAW360, a publication of Lexis Nexis Canada.
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