COURT OF APPEAL FOR BRITISH COLUMBIA
|
Citation: |
Kane v. Proffitt, |
|
|
2018 BCCA 106 |
Date: 20180316
Docket: CA43927
Between:
Paul Buster Kane
Appellant
(Respondent)
And
Melanie Jane Proffitt
Respondent
(Appellant)
|
Before: |
The Honourable Madam Justice D. Smith The Honourable Mister Justice Willcock The Honourable Mister Justice Goepel |
On appeal from: An
order of the Supreme Court of British Columbia,
dated August 18, 2016 (Proffitt v. Kane, 2016 BCSC 1936,
Vancouver Docket No. E150189).
|
Counsel for the Appellant: |
T. Wallwork |
|
Counsel for the Respondent: |
N. Nasser |
|
Place and Date of Hearing: |
Vancouver, British Columbia November 24, 2017 |
|
Place and Date of Judgment: |
Vancouver, British Columbia March 16, 2018 |
|
Written Reasons by: |
|
The Honourable Madam Justice D. Smith |
|
Concurred in by: |
|
The Honourable Mr. Justice Willcock |
|
The Honourable Mr. Justice Goepel |
Summary:
The father appeals from an order of the Supreme Court that set aside an order of the Provincial Court that prohibited the mother from relocating their child from the Vancouver area to the Okanagan. Held: appeal allowed. The Supreme Court appeal judge improperly expanded the scope of appellate intervention, admitted fresh and new evidence without applying the appropriate legal tests for admissibility, and made an interim order relocating the child on a temporary experimental basis, contrary to ss. 233 and 234 of the Family Law Act, before allowing the appeal and making a final order permitting the child’s permanent relocation.
Reasons for Judgment of the Honourable Madam Justice D. Smith:
[1] This appeal raises issues about the scope and process of an appeal to the Supreme Court of British Columbia from an order of the Provincial Court under the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”).
[2] The father in this case was originally granted an order by a provincial court judge that prohibited the mother from relocating the parties’ child. The mother appealed the prohibition order to the Supreme Court. The Supreme Court judge admitted, and persuaded the parties to adduce, fresh and new evidence without assessing its admissibility. He also made an interim order relocating the child so that evidence could be obtained about how the child would fare in the mother’s new community. Based on the results of the experimental interim order, the judge ultimately made an order permitting the child’s permanent relocation. The father appeals that order to this Court.
[3] For the reasons that follow, I would allow the appeal.
[4] The parties were in a relationship for approximately two and a half years. The child, who has special needs, was born on August 18, 2007. The parties ended their relationship when the child was 18 months old.
[5] The trial judge summarized the child’s special needs as follows:
[10] …[the child] is a special needs child. In September, 2010, the parties enrolled him at [a children’s centre], a daycare facility, but [the child] started having behavioural issues there, and the parents were frequently called for assistance. [The child] started Kindergarten at [a school] in Vancouver, during which time he received treatment or therapy from Dr. Wong, a psychiatrist at the Alan Cashmore Centre. In November 2012, [the child] received a Level 4 Ministry Designation: H in order for him to access additional support services offered through the district. On November 29, 2012, Dr. Wong diagnosed [the child] with Chronic Adjustment Disorder with disturbance of conduct due to ongoing parental tension and parent child relational disturbance. On December 19, 2012, Dr. Stikarovska, a child psychiatrist at the BC Children’s Hospital, diagnosed [the child] with Disruptive Behaviour, and observed that [the child] displays sensory processing difficulties, and concurred with the child play therapy offered by the Alan Cashmore Centre. On October 24, 2013, Dr. Wong assessed [the child] for a second time, and she diagnosed him as having Disruptive Behaviour Disorder NOS, and recommended that his Parent Child Interaction Therapy continue. On February 11, 2014, Dr. Rothschild, a child and family psychiatrist at the Alan Cashmore Centre provided an updated assessment of [the child] and his diagnosis was that [the child] is showing anxiety and reaction to any pressure on his sensory sensitivities which are visual, and auditory and recommended that child/parent therapy continue and recommended measures to help [the child] keep calm. To date [the child] has not been assessed as having Attention Deficit Hyperactivity Disorder (ADHD), and no medications have been prescribed.
[6] In sum, the child has a Level 4 Ministry Designation “H” for special educational services; Chronic Adjustment Disorder with disturbance of conduct; and Disruptive Behaviour Disorder.
[7] The parties chose the Provincial Court to resolve issues concerning the care of and time with their child. The initial December 9, 2010 provincial court order under the former Family Relations Act, R.S.B.C. 1996, c. 128, awarded the parties joint custody and joint guardianship of their child, with primary care and residence to the mother. At the time, both parties resided in the Vancouver area and custodial time with the child was shared between them, albeit not on a substantially equal basis.
[8] In May 2014, when the child was six years of age, the mother gave written notice to the father, pursuant to s. 66 of the FLA, of her proposed relocation of the child to the Okanagan, where she planned to move in order to live with her new partner who resided there with his daughter and practised as a dentist. Her partner had also secured a job for her as a dental hygienist in a clinic in which he had a financial interest, at an estimated annual salary of $86,000. That salary was significantly higher than the mother’s annual salary of $31,000 as a freelance dental technician in Vancouver.
[9] On June 9, 2014, the father filed an application in the Provincial Court, pursuant to s. 69(2) of the FLA for an order prohibiting the mother from relocating the child from Vancouver to the Okanagan.
[10] Until then, the mother had been the child’s primary caregiver. While the parties did not have a substantially equal parenting arrangement, both were actively involved in the child’s life and the child had a strong attachment to each of them. The father had overnight access every Wednesday, alternate weekends and Friday overnight during non-access weekends. Each party had one full weekend every two months and one full week of holiday during the summer.
[11] The father’s application was heard over the course of four days before Romilly P.C.J.
[12] The relevant provisions of the FLA that had to be considered by the trial judge included the following:
Orders respecting relocation
69 (1) In this section, “relocating guardian” means a guardian who plans to relocate a child.
(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.
(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.
(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,
(a) the relocating guardian must satisfy the court that
(i) the proposed relocation is made in good faith, and
(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and
(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.
(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court
(a) of the factors described in subsection (4) (a), and
(b) that the relocation is in the best interests of the child.
(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:
(a) the reasons for the proposed relocation;
(b) whether the propose relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
(c) whether notice was given under section 66 [notice of relocation];
(d) any restrictions on relocation contained in a written agreement or an order.
(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child’s relocation were not permitted.
[Emphasis added.]
Best interests of child
37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
…
[13] The father testified in support of his application. He also called evidence from his wife and her mother regarding the strength of the child’s relationship with each of them, and a third witness who similarly testified to the strength of the child’s relationship with Mr. Kane, his wife, and her mother. The mother in turn testified on her behalf about the strength of her relationship with the child and the circumstances that she anticipated would be available for the child in the Okanagan. She led no other evidence. The trial judge summarized the mother’s evidence as follows:
[13] [The mother] in her viva voce evidence at trial stated that she and [her partner] were moving in together and are going to live in a 4,500 square feet home with five bedrooms, and that her son would have his own room and bathroom, and that one mile away from the home there is a park and beach and hiking trails. She stated that her son has been accepted in [the named school], which she describes as a “sweet school” and where she stated [the child’s] extracurricular activities would continue. She stated that she spoke to the Principal of the school, and is satisfied that her son would continue to receive counselling and therapy for his special needs. She stated she would get him to school on the school bus. Neither [her partner] nor [her mother, who was going to move to the new community,] were called to confirm their relationships with [the child], and [the partner] was not called to confirm his intention to marry [the mother] and set up a home for [the child].
[14] The trial judge expressed concern about the lack of objective “medical or psychological evidence” regarding the potential impact the relocation might have on the child (at para. 26), whether the child’s new school would be able to provide similar services to meet his “H” designation needs that had entitled him to receive numerous therapies and assessments in the Vancouver area, whether there were medical professionals in the new community that could address his special medical needs as they had been assessed in the Vancouver area, and the lack of an “independent assessment” of the child’s “true views on the matter” (at para. 38). With respect to the views of the child, the father had filed an application for a s. 211 report under the FLA but appears to have abandoned the application in order to have his application to prohibit the mother’s relocation determined expeditiously.
[15] The trial judge further opined that it would have been helpful if the mother’s new partner, who was present in court for some of the proceedings, had testified about the state of his relationship with the child and his intentions with respect to his relationship with the mother. He expressed concern about the stability of the mother’s new relationship, which might affect her proposed employment with a clinic associated with her new partner if, after only a few months of long distance dating, their relationship did not last. In the absence of direct evidence on these matters, the trial judge stated (at para. 27) that “one may be forced to consider [the mother’s] evidence in this regard as amounting to nothing more than sheer optimism on her part, regarding her relationship with her prospective partner, and their providing a stable home for [the child].”
[16] Turning to the requirements of s. 69(4) of the FLA, the trial judge accepted that the mother subjectively believed that she was acting in good faith and for good and proper reasons in proposing the relocation of the child, and that she had made reasonable arrangements to preserve the father’s relationship with the child. However, he expressed doubt that the objective factors of good faith as set out in in s. 69(6) of the FLA had been established on the evidence, and in particular whether the move would enhance the quality of the child’s life. Ultimately, he found that the mother’s evidence amounted to little more than “pure guesswork” and that “the best that can be said about [the mother’s] evidence relating to an enhancement of [the child’s] and her quality of life, or [the child’s] emotional, financial, or educational opportunities is that relocation might make things better for him, or it might not” (at para. 33).
[17] The trial judge then turned to consideration of the factors in s. 37(2) of the FLA, finding: (a) he had “the greatest misgivings” that the child’s health and emotional well-being would be enhanced by the relocation, especially given how disruptive it would be for the child who had always lived in Vancouver (at para. 37); (b) there was no independent assessment of the child’s views of the proposed move or more significantly of whether his special needs could be met by the proposed move; (c) the father’s evidence established that he and the significant others in his life, including his wife, and his wife’s mother, both of whom testified, had a strong bond with the child, while the significant persons in the mother’s life had not testified about the nature and strength of their relationship with the child; (d) it was conceded that the mother had been the primary caregiver to the child, although both parents had spent considerable time and effort in caring for the child and in looking after his special needs; (e) the child’s need for stability, given the child’s age and particularly his special needs, militated greatly against relocation; (f) both parties were equally capable of exercising their parental responsibilities; (g) & (h) there was no evidence of family violence; and (i) both parties had demonstrated an ability to cooperate on issues affecting the child; however, the paucity of concrete evidence on the “precipitously arranged” proposed relocation, with little information about the mother’s new partner and his relationship with the child, gave rise to a concern about the future cooperation between the parties, and the security and well-being of the child (at para. 45).
[18] In sum, the trial judge found that the mother, while establishing that the child had a strong bond with her, had failed to provide sufficient evidence of the nature and strength of the child’s relationship with the other significant persons that would be in his life if he relocated to the Okanagan and of the services available to meet his special needs in that community. The trial judge also expressed concern about the stability of the mother’s relatively short and until then long-distance relationship, and how, if the relationship did not last, it might impact her employment in that community.
[19] Weighing all of these factors, the trial judge concluded that: (1) the mother had not tendered sufficient evidence to establish that the proposed move would enhance the quality of the child’s life in accordance with the objective criteria of “good faith” listed in s. 69(6) of the FLA for permitting the relocation of the child; and, (2) it was not in the best interests of the child to be relocated to the Okanagan. The trial judge granted the father’s application for a prohibition order.
[20] After the prohibition order was granted, the mother relocated to the Okanagan without the child, filed an appeal of the order to the Supreme Court (“the First Appeal”), and the father became the child’s primary caregiver with the mother seeing the child on weekends and holidays.
[21] The First Appeal was heard by Mr. Justice Leask over seven non-consecutive days between October 2015 and September 2016.
[22] At the outset of the hearing, the judge expressed concern over the lack of a views of the child report and the effect of the December 22, 2014 order in changing the child’s primary residence from that of his “primary caregiver from birth to a parent whose contacts had been significantly less frequent” (at para. 16). He found that the trial judge had erred by failing to obtain a views of the child report when he (the trial judge) was of the view that such a report would have assisted him in his determination.
[23] As set out above, s. 37(2) of the FLA provides a non-exhaustive list of factors relevant to the child’s needs and circumstances that includes subsection (b) “the child’s views, unless it would be inappropriate to consider them.” The trial judge did not make that finding or adjourn the trial to obtain a views of the child report. Section 37(1) further provides that the factors listed in s. 37(2) must be considered in determining the best interests of a child for the purposes of making an order under Part 4 of the FLA for “guardianship, parenting arrangements or contact with a child.” The judge persuaded the parties that a views of the child report should be ordered and new evidence should be tendered of the parties’ post-trial circumstances because “much of the trial judge’s reasoning was based on inferences regarding the mother’s future – both in terms of her relationship and the related issue of her future employment” (at para. 16).
[24] The judge, without a motion before him, persuaded the parties to adduce new evidence “about events following the conclusion of the evidence in the Provincial Court hearing”, including evidence from: (1) the mother about her relationship with her new partner and her employment circumstances in the Okanagan; (2) her interactions with the child during her visiting times with him after she had relocated; (3) her new partner and his circumstances; and (4) the father’s circumstances with respect to his care of the child since the trial. See Proffitt v. Kane (December 11, 2015), Vancouver Docket No. E150189 at para. 3.
[25] New evidence of post-trial developments was admitted in the form of testimony from each of the parties and the mother’s partner, as well as affidavit evidence. One of the affidavits contained a number of exhibits, including email and text communications between various individuals. A book of documents was also entered as an exhibit at the hearing, which included: (1) a comprehensive April/May 2015 Psycho-Educational Report obtained from an agency in the Lower Mainland; (2) the child’s November 2014 and February 2015 Grade 2 Primary Progress Reports from the Vancouver School Board; and, (3) the child’s March 2015 Learning Assistance Centre Insert Report from the Vancouver School Board.
[26] In the April/May 2015 Psycho-Educational Report, the child was described as a sensitive and anxious child, who struggles with “Chronic Adjustment Difficulties” due to the severe conflict between the parties, and who cognitively exhibits attention and self-regulation, or “ADHD-similar”, challenges. The report summarized the child’s immediate needs at that time as follows:
Regardless of designations or diagnoses [i.e. Chronic Adjustment Disorder, Unspecified Anxiety Disorder and Attention Deficit Hyperactivity Disorder] [the child’s] immediate needs appear to be: 1) occupational therapy consultation to assist with a regulation; and behaviour support plan (primarily at school), as well as to assess for possible sensory-related challenges; 2) consultation and services from a skilled mental health therapist to address ongoing adjustment and anxiety challenges; 3) improvement in his parents’ co-parenting relationship, independent of litigation outcomes; 4) continued monitoring by a paediatrician or psychiatrist for the possibility of ADHD; and 5) that [the child’s] written output be monitored for the possibility of an emerging written output disorder, and school staff consider the early introduction of keyboarding at school as a preventative measure. Moreover, most of [the child’s] behavioural and mental health supports to date have focused on parenting support and the facilitation of compliant behaviour. Ongoing parent support that focuses on understanding why [the child] presents the way that he does and developmentally informed responses to challenging behaviours may be helpful. Similar strategies might be put into play at school to ensure minimal unnecessary dysregulation in relation to behaviour management tactics.
[27] No analysis of the admissibility of the post-trial events as new evidence was undertaken by the judge. The new evidence was simply admitted into evidence with the consent of the parties.
[28] After hearing the new evidence, the judge, again with no motion before him, informed the parties that he still had an “itch to scratch about” obtaining the child’s views. The parties ultimately agreed to retain Dr. Elterman, a registered clinical and forensic psychologist, to prepare a views of the child report to s. 211(1)(b) of the FLA; it does not appear that a needs of the child report pursuant to s. 211(1)(a) of the FLA was considered. Dr. Elterman’s report was completed on November 30, 2015, and presented to the court on December 3, 2015, with further submissions by counsel for the parties. It was admitted into evidence “by consent” with no analysis of the legal test for the admissibility of “fresh evidence” under Palmer v. The Queen, [1980] 1 S.C.R. 759.
[29] In his November 30, 2015 report, Dr. Elterman advised that the child said he was happy with his life but would like to see his mother more as he only saw her for two days and his father for a week; he wanted to see how it would be to live with her in the Okanagan; he got along well with his father’s new wife who is “sweet and nice”; and he got along with his mother’s new partner, sometimes. Dr. Elterman reported that the child said he would prefer to live with his mother as he felt more comfortable going to her if he has a problem, adding that “[The child] obviously is projecting what he thinks it would be like living at his mother[’s] and going to school in [the Okanagan]” and that “[b]ased on his experiences of spending weekends and vacations with her, he says that he would like to try living with her.” However, Dr. Elterman expressly noted that he was not asked to provide a needs of the child report and therefore his conclusions did not take into account parenting capacity or the child’s ties to either community. He underscored that he was only reporting on the child’s views and not making any recommendations.
[30] The transcription of the December 3, 2015 hearing before the judge indicates that he found Dr. Elterman’s report contained insufficient information for him to make necessary “findings of fact” to determine the appeal. Accordingly, he adjourned the hearing for 20 minutes to permit counsel for the parties to discuss whether they wanted to have “a trial” with respect to the issue of the child’s proposed relocation to the Okanagan. During this hearing, the father’s counsel cautioned the judge about “experimenting too much”. When the hearing resumed, the judge reiterated his concern that no psychological assessment on the needs of the child had been before the trial judge, although he stated that he was not sure its absence was “a ground of appeal exactly”. At the conclusion of the hearing, the judge adjourned the matter to December 11, 2015, for his decision on the appeal.
[31] On that date, both sides were expecting a final determination of the appeal. Instead the judge pronounced an “interim order” that: (1) commencing January 2016, the child was to be relocated to his mother’s residence in the Okanagan “until further order of the Court”; (2) at the conclusion of the school year in June 2016, a supplementary views of the child report was to be completed by Dr. Elterman; and (3) the matter would be reviewed by the judge in August 2016 who would make a final order in the appeal, upon the receipt of further evidence and submissions. The parties had not requested and had no opportunity to make submissions with respect to such an order. The interim order effectively changed the status quo in order to allow for a trial run on how the child would fare with the proposed relocation without changing the order under appeal so that it could be relied on in the event the relocation did not go well.
[32] The interim order was made on December 11, 2015. After the Christmas holidays, the child was relocated to the mother’s home in the Okanagan. Since then, he has lived with his mother, her new partner, and her partner’s daughter. The mother and her partner have also had a baby.
[33] On March 10, 2016, the parties appeared before the judge on the father’s application, in part, for clarification of the status of the December 22, 2014 order under appeal as it appeared to be in conflict with the December 11, 2015 interim order. The judge confirmed that he had not “quashed, stayed, or suspended” the December 22, 2014 order and its status would only be determined after he reviewed the second views of the child report.
[34] As I will discuss below, ss. 233 and 234 of the FLA do not authorize the Supreme Court to change the order under appeal until the appeal is determined. On his own initiative, the judge relocated the child under the interim order, for the express purpose of determining how the child would manage at living with his mother and her new partner in the Okanagan, before he made a final determination in the appeal. The purpose of the second views of the child report appears to have been to assess the impact of the relocation on the child and ‘validate’ the mother’s evidence before the trial judge with respect to her expectations of the resources that would be available for the child in the new community and of how the child would get along with her new partner.
[35] In his August 15, 2016 second views of the child report, Dr. Elterman noted that the child had been moved in the middle of Grade 3 and had to adjust to a new school in the Okanagan beginning in January 2016. He reported the child said to him that: (i) he liked living with his mother in the Okanagan; (ii) he has more family in Vancouver but he also has a new baby brother in the Okanagan; (iii) he would go to his mother if he had a problem as she is the easiest to talk to because she understands him better, although in his second interview, when asked who he would find it easiest to talk to if he had a problem, he said “both are very good at answering”; (iv) he liked his school and had lots of friends; (v) he was happiest when he was able to spend equal time with each parent; and (vi) he particularly enjoyed the summer schedule of two weeks on and two weeks off between each home, an arrangement that was not possible during the school year. In Dr. Elterman’s opinion the child’s comments reflected an attachment to both of his parents. Based on that report, the judge found that the mother’s evidence in favour of the proposed relocation was “vindicated by the post-trial developments.” See Proffitt v. Kane, 2016 BCSC 1936 at para. 29. The experiment had been successful.
[36] None of the new evidence considered by the judge, which included additional oral and affidavit evidence from both parties of matters that arose after the trial and the second views of the child report, from which the judge made his own findings of fact, was subjected to an analysis of its admissibility pursuant to the legal test set out in Jens v. Jens, 2008 BCCA 392.
[37] Based on the new evidence, the judge found that the child had done well living with his father since the December 22, 2014 provincial court order and that he had also done well living with the mother after the December 11, 2015 order. He noted that both households had provided a loving and supportive home for the child who had a good relationship with each of them and their new partners. After the child was relocated the judge found that the second views of the child report contained two important updates: (1) the child had no complaints about living primarily with his mother and seeing his father on weekends; and (2) the child described the summer schedule of alternating two-week periods with each parent as ideal. The judge said that if the parties had lived close to each other he would have had no hesitation in making an order for equal parenting time, which was the arrangement that made the child the happiest.
[38] In his October 21, 2016 reasons for judgment, the judge stated:
[29] On the evidence before the learned trial judge the inference[s] he drew, based on the mother’s evidence were open to him. Because of counsel’s agreement that I should hear new evidence on appeal concerning the post-trial situation, I was in a better position than the trial judge to assess the child’s best interests with his father living in [the Vancouver area] and his mother living in [the Okanagan]. [O]n the evidence before me, the mother’s trial evidence was vindicated by the post-trial developments. The mother’s relationship with her new partner was obviously successful. Her new job in [the Okanagan] was going well. The missing ingredient at the trial- the views of the child – indicated he wished to spend more time with his mother and less time with his father. This led me to make the interim order for a trial period of one school term with [the child] living with his mother in [the Okanagan] and seeing his father on weekends.
[30] The second Views of the Child Report showed that [the child] was happier living primarily with his mother and happiest when he could spend equal time with both parents. This evidence satisfied me that, as long as the two households were located in [the Vancouver area and the Okanagan], it was in the best interests of the child to reside primarily with his mother.
[Emphasis added.]
[39] In the result, on August 18, 2016, the judge made a final order allowing the appeal and setting aside the order of the trial judge that prohibited the relocation of the child to the Okanagan. Thereafter, on September 23, 2016, he granted the parties a consent order that varied the initial provincial court order of December 9, 2010 by imposing new parenting times that accommodated the child’s relocation.
[40] The father appeals the August 18, 2016 order. He submits:
1. The judge erred in law in admitting new evidence in the First Appeal and effectively conducting the appeal as a trial de novo;
2. The judge erred in law in making an “interim order” authorizing the relocation of the child for a six month period without making a final determination in the appeal;
3. The judge erred in law by setting aside the trial judge’s order without identifying a material error in the trial judge’s analysis;
4. The judge erred in law by failing to consider: (i) the child’s need for stability, as required by s. 37(2)(e) of the FLA; and (ii) whether the proposed relocation would likely enhance the child’s general quality of life as required by s. 69(6)(b) of the FLA; and (iii) erred in fact by finding that the views of the child reports indicated that the child was unhappy living with the father.
[41] In light of my proposed disposition of this appeal, I shall limit my analysis to the first three grounds of appeal only.
[42] The scope of appellate review in family matters is a narrow one; intervention by an appellate court is subject to a high standard of review. The function of appellate review is not to re-try a case or to continue the trial at a different stage. Rather, its purpose is to examine the record below to determine if material or reversible error has been demonstrated, including an error of law, an error of principle, an error of fact, or a serious misapprehension of the evidence that could reasonably have affected the result and therefore warrants appellate intervention. See Scott v. Scott, 2006 BCCA 504; Jens; R.E.Q. v. G.J.K., 2012 BCCA 146; Moge v. Moge, [1992] 3 S.C.R. 813 at 832-833; and Van de Perre v. Edwards, 2001 SCC 60 at para. 15.
[43] In R.E.Q., Madam Justice Newbury summarized the appellate review jurisdiction as follows:
[33] …The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error (including a “significant misapprehension of the evidence”, the trial judge’s having “gone wrong in principle or [his] final award [being] … clearly wrong”): see Moge v. Moge [1992] 3 S.C.R. 813, at 832; and R.M.S. v. F.P.C.S. 2011 BCCA 53, at para. 43, citing Hickey v. Hickey [1999] 2 S.C.R. 518 at para. 12 and Van de Perre v. Edwards 2001 SCC 60, [2001] 2 S.C.R. 1014 at paras. 14-5. In the latter case the Court wrote:
…Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [At para. 13]
Thus the authorities make it clear that it is not for an appellate court to re-weigh the evidence or to interfere on the basis that the appellate court would give more weight than the trial judge did to one factor or another – or, in the words of the Court in Hickey, that it would have “balanced the factors differently.”
[44] Appeals from provincial court orders under the FLA to the Supreme Court are subject to the same standard of review as outlined above. However, their scope and process are governed by ss. 233 and 234 of the FLA, which sets out the types of orders the Supreme Court can make on an appeal from the Provincial Court, and R. 18-3 of the Supreme Court Family Rules [SCFR], which sets out rules for the conduct of the appeal.
[45] Sections 233 and 234 provide:
233 (1) A party may appeal to the Supreme Court an order of the Provincial Court made under this Act, except an interim order.
…
(3) After hearing the appeal, the Supreme Court may do one or more of the following:
(a) confirm or set aside the order of the Provincial Court;
(b) make any order that the Provincial Court could have made;
(c) direct the Provincial Court to conduct a new hearing.
…
234 Despite any other enactment, if an order made under this Act is appealed, the order remains in effect until the determination of the appeal unless the court that made it orders otherwise.
[46] Rule 18-3 provides:
Application
(1) If an appeal … from a decision … of any person or body, including the Provincial Court, is authorized by an enactment to be made to the court …, the appeal is governed by this rule to the extent that this rule is not inconsistent with any procedure provided for in the enactment.
…
Directions
3 A notice of appeal must include
(a) the standard set of directions, in the form directed by the Chief Justice, governing the conduct of the appeal, or
(b) an application for directions as to the conduct of the appeal.
Conduct of appeal
(4) If the notice of appeal includes a standard set of directions under subrule (3)(a), the appeal must be conducted in accordance with those directions unless the court otherwise orders.
[47] The Notice of Appeal from the December 22, 2014 provincial court order attached the standard directions for appeals from the Provincial Court under s. 233 of the FLA (the “Directions”). The Directions include a number of requirements for perfecting an appeal to the Supreme Court, including the filing of: (1) a transcript of oral evidence given at the hearing in the Provincial Court; (2) reasons for judgment of the Provincial Court; and (3) a written outline of the grounds of appeal, the relief sought, and the factual and legal basis on which the relief is sought including a list of any authorities to be relied upon. The Directions further state: “No new evidence may be adduced at the hearing of the appeal without leave of the court.”
[48] These provisions of the FLA and the SCFR establish that an appeal from an order of the Provincial Court is conducted on the record that was established before the trial judge, and that the tendering of new evidence, in whatever form permitted, requires leave of the Court. These rules do not change or abolish the common law legal tests for granting leave to admit fresh evidence under the test in Palmer at 775‒776, or new evidence under the more stringent test in Jens at paras. 23‒30.
[49] The distinction between the two legal tests was explained in Jens. Fresh evidence is evidence that existed at the time of the trial, but for various reasons could not be put before the court. Its admission on appeal is subject to the four-part Palmer test, which requires the applicant to demonstrate that the evidence: (1) was not discoverable by reasonable diligence before the end of the trial; (2) is relevant in that it bears upon a decisive or potentially decisive issue in the trial; (3) is credible; and (4) if believed, it could reasonably, when taken with the other evidence, be expected to have affected the result. The Court in Jens also noted (at para. 30) that in family law matters the approach to admitting fresh evidence is “slightly more elastic” in the sense that fresh evidence will be admitted if it is found to be in the interests of justice to do so (citing Luney v. Luney, 2007 BCCA 567 at para. 31 and Shabaga v. Shabaga (1992), 75 B.C.L.R. (2d) 128 (C.A.) at paras. 14‒15).
[50] In contrast, new evidence is evidence that came into existence only after the trial. It is only admitted in rare circumstances, such as where a trial judge has made assumptions about future events and then, before the appeal is heard, those assumptions are discovered to have been incorrect: North Vancouver (District) v. Lunde (1998), 60 B.C.L.R. (3d) 201 (C.A.) at para. 26. The rationale for the stringent approach to the admission of new evidence is that it has the potential to undermine the need for certainty and finality of litigation by inviting an appeal court “to apply different laws to different facts than those which confronted the trial judge’”: McCaffrey v. Paleolog, 2011 BCCA 378 at para. 62, quoting from Lambert J.A. in Lunde at para. 26. As the Court observed in Scott at para. 25, “[a]lthough events that occur after trial may affect the issues between the parties, matters must be reviewed as they stood at the time of trial; to do so otherwise would offend the principle of finality” (emphasis in original).
[51] The admission of fresh or new evidence in an appeal must be approached with caution. As this Court observed in Stav v. Stav, 2012 BCCA 154:
[32] …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, with attendant uncertainty and expense. It also has the potential of giving a party the opportunity to make up for deficiencies in his or her case at trial.
[52] With respect, in my opinion that is what occurred in this case. The appeal judge created a new evidentiary record based on post-trial events upon which he made new findings of fact to support his changing of the prohibition order under appeal. Indeed, much of the mother’s factum on the Second Appeal expressly addressed issues under the heading of “The Trial before the Honourable Leask J”.
[53] As alluded to above, in his reasons for judgment the judge acknowledged that the inferences of fact drawn by the trial judge were open to him to make on the record before him. He found no error in the inferences that were made by the trial judge in support of his decision. However, the judge believed that had the trial judge obtained a views of the child report, those findings might have been different and changed his decision. Accordingly, he held that the trial judge erred in law in failing to consider the child’s views as required by s. 37(2)(b) and he persuaded the parties to obtain a views of the child report.
[54] While there may be instances where, in the absence of an express finding, it would be reasonable to infer that a trial judge found it would be inappropriate to consider the views of a child, in this case the judge found that an independent assessment of the child’s views regarding the proposed move would have been helpful. Therefore, in my view, it was an error of law not to obtain that assessment as required by s. 37(2)(b).
[55] However, that is not the end of the inquiry. Having ordered a views of the child report, the judge did not conduct an analysis of the Palmer factors to determine the report’s admissibility. He simply relied on the consent of the parties. That understanding was misguided as a party’s consent does not abrogate a judge’s gatekeeper role to determine if the proposed evidence is properly admissible.
[56] Accepting the recognized need for flexibility in considering fresh evidence that bears on the issue of the best interests of a child, in my view the report did not meet the fourth criterion of the Palmer test for its admissibility, namely that it could reasonably be expected to have affected the result. This was evident from the judge’s decision, following his receipt of the first views of the child report, to make an interim order for a trial run of the proposed relocation, to order a second views of the child report after six months, and to receive further new evidence of post-trial events from the parties. Had the judge applied the Palmer test, the report would not have been admissible as it was apparent that on its own, as found by the judge, it could not have reasonably changed the result at trial. The missing critical evidence as to whether the new community had sufficient educational and medical services to meet the child’s special needs remained unanswered. Therefore, although it was an error of law for the trial judge to fail to obtain evidence of the child’s views when no finding had been made that doing so would be inappropriate, this was not a material error and the proposed fresh evidence did not support appellate intervention.
[57] Even if the views of the child report (or a needs of the child report) had been found to be meet all of the Palmer criteria, including that it could reasonably be expected to have affected the result, the reviewing judge would then have to determine whether to remit the matter to the trial court for consideration in conjunction with the totality of the evidence or whether it was both possible and preferable to make his own determination of the best interests of the child. In doing so, as this Court noted in Stav (at para. 21), the reviewing judge would have to bear in mind the findings of the trial judge that were not impugned.
[58] The judge in this case found the views of the child report inconclusive. At that point he should have dismissed the appeal. Instead, he proceeded to create a new evidentiary record based on post-trial events. He justified his order for the admission of new evidence in order to correct the “assumptions” made by the trial judge regarding “the mother’s future – both in terms of her relationship and the related issue of her future employment” and how the child would fare with the relocation (at para. 16). However, the trial judge did not base his prohibition order on any incorrect assumptions about the child’s proposed relocation, but rather on the lack of evidence from the mother that would permit him to draw reasonable inferences on how the child would fare in the new community in light of his special needs.
[59] Under s. 69(4)(a) of the FLA, the burden was on the mother as the relocating guardian to establish that the proposed relocation was made in good faith and reasonable and workable arrangements had been made to preserve the child’s relationship with the other parent. The father’s opposition to the proposed move raised the issue of what was in the best interests of the child. Section 69(3) of the FLA mandates that a relocation order under s. 69 of the FLA requires the court to consider, in addition to the factors set out in s. 37(2), the factors set out in s. 69(4)(a). Section 69(6) lists the objective factors that must be considered in determining the good faith requirement in s. 69(4)(a)(i). Section 69(6)(b) provides: “whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or education opportunities”.
[60] In my view, the judge erred in law by creating a new evidentiary record upon which he made his own findings of fact to support making a different decision from that of the trial judge, after having accepted that the inferences drawn by the trial judge were open to him to make and in the absence of any material error. In doing so he effectively converted what should have been an appeal on the record into a continuation of the trial through the admission of new evidence. Such an approach exceeds the scope of the appellate review jurisdiction. The trial judge found that the mother had not adduced sufficient evidence to establish that the proposed relocation was in good faith pursuant to s. 69 of the FLA, or in the best interests of the child pursuant to s. 37(2); the purpose of the appeal should have been to identify material, reversible errors, not to allow one party to make up for potential deficiencies in the case they presented at trial.
[61] The judge also erred in law in his application of ss. 233 and 234 of the FLA. It is clear that those provisions do not authorize the Supreme Court to make an “interim order” subject to review, which effectively changes the order under appeal before the appeal is determined.
[62] First, s. 233 does not allow for such an order as s. 233(1) does not authorize appeals from interim orders. Therefore, the orders the Supreme Court is authorized to make pursuant to s. 233(3)(b) can only be final orders that the Provincial Court could have made.
[63] Second, s. 234 requires the order under appeal to remain in effect until the determination of the appeal unless the court that made the order (i.e., the trial court) orders otherwise. The December 22, 2014 order under appeal was never stayed and remained in effect until the final order of August 18, 2016 in the appeal. This process clearly exceeded the statutory scheme contemplated for appeals of orders from the Provincial Court to the Supreme Court.
[64] For these reasons, I would allow the appeal, set aside the order of the Supreme Court and reinstate the Provincial Court prohibition order.
[65] I would also offer the following observations. Taking a gamble with a child’s life, particularly a child with special needs, by ignoring the parameters of the court’s jurisdiction for the purpose of validating a preferred disposition should never be undertaken. If the gamble is unsuccessful, it is the child who will bear the harmful consequences. Fortunately in this case, the child appears to have two loving parents to whom he his bonded, two good homes to care for him and two good communities that are able to meet his needs. Going forward, it is to be hoped that only his best interests will dictate any future actions.
“The Honourable Madam Justice D. Smith”
I AGREE:
“The Honourable Mr. Justice Willcock”
I AGREE:
“The Honourable Mr. Justice Goepel”