2008 BCSC 1155 A.B. v. C.D.

Before: The Honourable Mr. Justice Kelleher

Reasons for Judgment

Counsel for the Plaintiff:	M. MacLeod
Counsel for the Defendant:	A.Laing
Date and Place of Hearing:	July 21-23, 2008
	Vancouver, B.C.

[1] The plaintiff commenced this action on April 11, 2007 She seeks a divorce, spousal support, a division of family assets and various other forms of relief related to the division of assets.

[2] This is an application pursuant to Rule 30(1) of the Supreme Court Rules, B.C. Reg. 221/90 for an order that the plaintiff attend for an independent medical examination by Dr. Les Sheldon, a geriatric psychiatrist. Rule 30(1) of the Supreme Court Rules reads as follows:

Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.

[3] If such an order is made, the defendant also seeks an order that the plaintiff's family physician provide to counsel for the defendant a copy of all clinical records relating to the examination and treatment of the defendant.

[4] The parties are 68 and 66 years of age, respectively. They were married on July 6, 1963. They separated on March 28, 2007 and have not lived together since.

[5] The grounds for divorce were adultery and one-year separation. Adultery is no longer alleged. The defendant states in the statement of defence:

The Defendant believes the ... allegations [of adultery], and the whole of the Statement of Claim, results from the false beliefs of the Plaintiff due to a psychological condition which the Plaintiff may be suffering known as "Delusional Disorder". The Defendant says in the circumstances, the Plaintiff may not have a true intention to separate and this proceeding ought to be stayed pending an examination of the Plaintiff by a qualified psychiatrist to assess the Plaintiff's capacity, and pending any recommended treatment.

[6] The statement of defence was filed on July 10, 2007. In September 2007, the parties appeared before Mr. Justice Cole. He heard the defendant's application for an order compelling the plaintiff to attend an independent medical examination with a geriatric psychiatrist.

[7] On the second day of the hearing, Mr. Justice Cole made an order, by consent, pursuant to Rule 32(a) of the Supreme Court Rules. The order appointed Dr. Michael Elterman to provide an opinion to the court on this question:

Q: Whether the decision to separate in this case is the product of a mental disorder and regardless of whether it is or not, whether there is any reasonable prospect of reconciliation.

[8] Dr. Elterman delivered his report on November 7, 2007. His opinion is that the plaintiff's decision to separate is not the product of a mental disorder and that there is no reasonable prospect of reconciliation between the parties.

[9] Dr. Elterman's report does not appear to have resolved matters. The defendant takes issue with the correctness of Dr. Elterman's conclusions.

[10] The basis of the defendant's application is as follows. In 2002, the plaintiff told the defendant the marriage was over. The parties immediately began a series of counselling sessions with a Dr. John Schallow, a psychologist. The parties did not separate. They continued both individual and joint sessions with Dr. Schallow.

[11] Dr. Schallow told the defendant that in the course of those sessions, the plaintiff alleged the defendant was being unfaithful to her and that the defendant was persecuting her. The defendant asserts there has been no infidelity since the 1970s.

[12] The plaintiff, for her part, asserts that she sought to end the marriage in 2002 because she was deeply unhappy and found living with the defendant intolerable. She attended counselling at the defendant's insistence.

[13] In November 2006, the defendant's mother became ill and incapacitated. The plaintiff moved in with the defendant's mother and managed her care. She held a power of attorney over her mother-in-law. The plaintiff returned to the matrimonial home in early 2007.

[14] On March 28, 2007, the plaintiff asserts, she decided to end the marriage. She left the matrimonial home, and moved to a hotel. She then moved in with a relative and, finally, rented an apartment.

[15] The defendant asserts that just before the plaintiff moved out, she found a cellular telephone and important cards that she had earlier misplaced. She accused the defendant of having hidden them.

[16] The defendant asserts that Dr. Schallow has told him the plaintiff may be suffering from a condition known as "delusional disorder". Dr. Schallow is of the view that because of this possibility, the plaintiff ought to be examined by a psychiatrist to determine whether she does, in fact, suffer from delusional disorder and whether there are underlying medical reasons which might require treatment.

[17] The plaintiff has refused such a referral.

[18] After the plaintiff left the matrimonial home, the defendant consulted with Dr. Schallow. Dr. Schallow told the defendant that it was important that the plaintiff be examined by a geriatric psychiatrist to ensure that she was not suffering from some serious neurological or metabolic condition.

[19] The defendant has done research on the nature of delusional disorder. He provided some information about it to Dr. Elterman.

[20] The plaintiff says in reply that she denies a feeling of "persecution". She asserts that she is in good health and in full control of her faculties. At the time she swore her affidavit, in September 2007, she continued to hold power of attorney over the defendant's mother's affairs.

[21] Dr. Bryce Kelpin is the plaintiff's personal physician. He has provided this opinion:

It is my opinion that [A.B.] is mentally competent and able to instruct counsel and handle her own affairs. It is my understanding that [A.B.'s] estranged husband has alleged that she suffers from "delusional disorder". This is not my opinion. I have never diagnosed [A.B] with this condition and I do not believe it is necessary to send her for further referral to address this alleged diagnosis.

[22] The defendant concedes that the plaintiff has the general capacity to attend to her own affairs and to instruct counsel. Indeed, it is significant to me that she held a power of attorney over the defendant's mother.

[23] The capacity to form the intention to live separate and apart is discussed in Professor Gerald B. Robertson's Mental Disability and the Law in Canada, 2nd ed., (Toronto: Carswell, 1994) at 272:

Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention. This is probably similar to capacity to marry, and involves an ability to appreciate the nature and consequences of abandoning the martial relationship.

[24] Professor Robertson went on to discuss the capacity to marry at pp. 253-254:

In order to enter into a valid marriage, each party must be capable, at the date of the marriage, of understanding the nature of the contract of marriage and the duties and responsibilities which it creates....The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test. ...the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage. Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involves mutual support and cohabitation, capacity is present. The reported cases indicate that the test is not a particularly demanding one. As was said in the leading English decision, "the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend".

... Capacity to marry may exist despite incapacity in other legal matters. This necessarily follows from the fact that the requirements of legal capacity vary significantly as between different areas of law, and must be applied specifically to the particular act or transaction which is in issue. Thus, for example, a person may lack testamentary capacity yet have capacity to marry. Similarly, a person may be capable of marrying despite having been declared mentally incompetent and having had a property guardian or guardian of the person appointed.

[25] Thus, the capacity to marry and the capacity to form the intention to live separate and apart, which are said to be similar, appear to be lower standards than the general capacity to conduct one's own affairs and instruct counsel. See Banton v. Banton (1998), 164 D.L.R. (4th) 176, 66 O.T.C. 161, (Ont. C.J.) at paras. 107,110 and 114.

[26] In Valentin v. Winkler (1995), 7 E.T.R. (2d) 84 (B.C.S.C.), the court stated that Rule 30(1) requires that the applicant establish that a person's physical or mental condition is in issue "in the proceeding". Even if the condition is established, the order is then a discretionary one. The court in that case concluded that the plaintiff's mental condition was not in issue. However, the court went on at para. 16:

16. If I am wrong in my conclusion that the plaintiff's mental condition is not in issue "in the proceeding" as that phrase is to be interpreted in R. 30, then I would exercise my discretion against the granting of the order. I would do so because, in my view, in a case such as this where it is the fundamental capacity of the party which is at issue, the party putting that fundamental capacity in issue ought to be required to do far more than simply allege incapacity in the pleadings. He ought to be required to put forward cogent evidence which establishes real question as to the other party's capacity which justifies requiring that party to undergo the psychiatric examination. In my opinion, the defendant's evidence falls short of that standard.

[27] There is some suggestion in the evidence that the plaintiff may suffer from a delusional disorder. It is far short of a diagnosis. There is no evidence that the plaintiff lacks the capacity to form the intention to live separate and apart.

[28] Under Rule 30(1) the first requirement is that the matter be an issue "in the proceeding". Here, I am satisfied that it is an issue in the proceeding. That is, the allegation is in the statement of defence and no application has been made to strike this pleading as vexatious.

[29] But the power to make an order under Rule 30(1) remains discretionary. Here, the circumstances dictate that the discretion be exercised against making such an order.

[30] Simply stated, the plaintiff is entirely competent and fully capable of instructing counsel.

[31] It is not the place of the court to inquire into the reasons for the separation. Divorce is not a matter of fault.

[32] The plaintiff has the capacity to conduct her own affairs and to instruct counsel. Any mental condition has no bearing on the issues to be determined in a divorce proceeding. The plaintiff is statutorily entitled to a divorce upon living separate and apart from the defendant for one year.

[33] For these reasons I am satisfied there is no basis for an independent psychiatric examination. The application is dismissed.

[34] The plaintiff is entitled to her costs.

"Mr. Justice Kelleher"

Citation:	*A.B. v. C.D.,*
	2008 BCSC 1155