COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Fonseca v. Gabriola Island Local Trust Committee,

2021 BCCA 27

Date: 20210122

Docket:
CA45681; CA45682

Docket: CA45681

Between:

Joaquim Mamede Da
Fonseca
Olinda Maria Carvalho Da Fonseca

Respondents

(Plaintiffs)

And

Gabriola Island
Local Trust Committee

Appellant

(Defendant)

and

Docket: CA45682

Between:

Gabriola Island
Local Trust Committee

Appellant/
Respondent on Cross Appeal

(Petitioner)

And

Joaquim Mamede Da
Fonseca
Olinda Da Fonseca

Respondents/
Appellants on Cross Appeal

(Respondents)

Before:

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Abrioux

On appeal from:  An
order of the Supreme Court of British Columbia, dated
October 1, 2018 (
Fonseca v. Gabriola Island Trust Committee
, 2018 BCSC 1684,
Vancouver Dockets S177664 and S1611967).

Counsel for the Appellant
(via videoconference):

S.S. Manhas

Counsel for the Respondent
(via videoconference):

A.C. Bjornson

Place and Date of Hearing:

Vancouver, British
  Columbia

November 4, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 22, 2021

Written Reasons by:

The Honourable Mr. Justice Harris

Concurred in by:

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Abrioux

Summary:

The Gabriola Island Local
Trust Committee appeals an order that its Land Use Bylaw is inapplicable to a
seawall constructed by the landowners, the Fonsecas, on their property. The
judge held the bylaw inapplicable to the structure for the reason that the
purpose of a seawall is to protect ones property from erosion, a right held at
common law by a landowner that can only be abrogated by clear legislative
intent. The Fonsecas cross appeal the order that other structures on their
property, including fences and a deck/walkway, contravened the bylaw and that
they be removed. Held: Appeal allowed; cross appeal dismissed. A right to
protect ones property from the impact of erosion might exist at common law,
but it operates to govern the relations between private persons, not to
circumscribe the scope of statutory grants of municipal power. Local
governments have the authority to regulate the exercise of private rights
through zoning bylaws, as did the Island Local Trust here. The seawall
contravenes the bylaw and must be removed. On cross appeal, the judge correctly
determined that the fences, gates and deck/walkway were offending structures
under the bylaw and ordered their removal.

Table of Contents

Introduction
..
4

The Land Use Bylaw
..
5

The Fonsecas Structures
.
8

The Judgment Below
..
9

On Appeal
.
11

Analysis
.
12

The Approach to Statutory
Interpretation of a Grant of Zoning Authority
.
13

The Riparian Right to Protect Property
.
18

Disposition
.
20

The Cross Appeal
.
21

The Gates
.
21

The Fences
.
22

The Walkway
.
25

Disposition
.
26

Conclusion
..
26

Reasons for Judgment of the Honourable
Mr. Justice Harris:

Introduction

[1]

This appeal turns on the circumstances in which a common law right to
use or protect property is subject to regulation by local government land use
zoning bylaws. Specifically, the appeal and cross appeal concern the authority
of the Gabriola Island Local Trust Committee (Island Local Trust or Local
Trust Committee) to control the location of structures on waterfront property
on Mudge Island through its zoning powers. The structures in issue are a deck,
fences, a set of gates on a boat ramp, and a sea or embankment wall intended to
prevent the erosion of the property by the sea.

[2]

The issue before the judge was whether the structures contravened the Mudge
Island Land Use Bylaw No. 228, 2007 (Land Use Bylaw) and should be
removed. The judge ordered the removal of all of the structures except what I
will refer to as the seawall. He concluded that the Land Use Bylaw did not
authorize the regulation of the location of the seawall because the Island Local
Trusts empowering legislation was not sufficiently clear to abrogate the common
law right of the property owner to erect erosion control structures on the shoreline
to protect the property. The Land Use Bylaw, however, permissibly regulated the
location of the other structures.

[3]

The Island Local Trust appeals the order concluding that the Land Use Bylaw
did not apply to the seawall. The property owners seek to uphold the order in
respect of the seawall but argue, in their cross appeal, the judge erred in his
order requiring the removal of the other structures.

[4]

I will refer to the respondents and cross appellants as the Fonsecas.

[5]

For the reasons that follow, I would allow the appeal and dismiss the
cross appeal.

The Land Use Bylaw

[6]

On September 18, 2008, the Island Local Trust adopted the Land Use Bylaw.
The ultimate source of its authority to do so is s. 479 of the
Local
Government Act
, R.S.B.C. 2015, c. 1.

[7]

The Island Local Trust derives its powers from the
Islands Trust Act
,
R.S.B.C. 1996, c. 239. The purpose of the Island Local Trust is to carry
out the object of the Islands Trust, including through the regulation of the
development and the use of land in [its] local trust area by exercising powers
conferred by [the
Islands Trust Act
], including powers that would
otherwise belong to the regional district for each area. (s. 4(4)).

[8]

The object of the Islands Trust is set out in s. 3 of the
Islands
Trust Act
:

The object of the trust is to
preserve and protect the trust area and its unique amenities and environment
for the benefit of the residents of the trust area and of British Columbia
generally, in cooperation with municipalities, regional districts, improvement
districts, other persons and organizations and the government of British
Columbia.

[9]

Sections 24, 28, 29, 31 and 32 of the
Islands
Trust Act
confer powers on the Island Local Trust to achieve the object of
the Islands Trust. Sections 24, 28, and 29 confer on the Island Local
Trust the powers of regional districts under the
Local Government Act
to
enact bylaws that regulate the development and use of land in its local trust
area and to enforce those bylaws.

[10]

In particular, s. 29(1)(b) confers on the Island Local Trust the
powers found in Part 14 of the
Local Government Act
, including:

479 (1) A local government
may, by bylaw, do one or more of the following:

(a) divide the whole or part of the
municipality or regional district into zones, name each zone and establish the
boundaries of the zones;

(b) limit the vertical extent of a
zone and provide other zones above or below it;

(c)
regulate
the following within a zone
:

(i)
the use of land
,
buildings and
other structures
;

(ii) the density of the use of
land, buildings and other structures;

(iii)
the
siting
, size and dimensions
of

(A) buildings and other
structure
s,
and

(B) uses that are permitted on the
land;

(iv) the

location
of uses on the land and within buildings and other structures;

[Emphasis added.]

[11]

It is clear from reading the
Islands Trust Act
together with
Part 14 of the
Local Government Act
that the Island Local Trust may
regulate the siting, size, location and dimensions of buildings and other
structures within zones under its jurisdiction through the use of bylaws.

[12]

In furtherance of its mandate, the Island Local Trust passed an official
community plan in 2008 setting out the goals and principles of regulation for
Mudge Island: Bylaw No. 227,
Mudge Island Official Community Plan, 2007
(Official Community Plan)
.

[13]

The Official Community Plan sets out the approach to land regulation:

The Bylaw's approach to land use
and development growth is one of consideration and caution. It is hoped that by
laying out a pattern of low impact land use, adopting a cautious approach to
development, and fostering a cooperative relationship among the local community
and other governmental agencies, reasonable land use and development will take
place without requiring complex and expensive facilities and services, thereby
maintaining the Islands unique character as a place where the human community
lives in and with nature.

[14]

The Official Community Plan sets out the general zoning policy related
to ecosystem protection, including:

Policy 5        Permits, bylaw amendments or other approvals should
include protection of environmentally sensitive and hazardous areas including:
wetlands, watercourses, riparian areas, groundwater, intertidal areas, forests
and bluffs; a precautionary principle approach should be taken whereby
decisions are not made until adequate information is obtained.

Policy 7        Zoning
provisions should establish a minimum building setback from wetlands,
watercourses and the sea.

[15]

The Plan also sets out policies specific to the regulation of the
coastline and foreshore:

Objectives

Objective 1   To
minimize disturbance and pollution of the foreshore and the surrounding waters.

Objective 2   To
minimize conflicts between marine and foreshore users and uses.

Policies

Policy 1        In addition to setbacks for all buildings and
structures, land immediately upland of the foreshore and extending out over the
water may be designated as a development permit area.

Policy 2        Zoning should allow for low impact recreational
opportunities in coastal and foreshore areas.

Policy 3        Coastal and foreshore zoning shall be designed to
protect against disruption of natural beach systems and limit development.

Policy 4        Public
beach access areas should have minimal clearing, retain vegetation and not be
unduly obstructed by development.

[16]

To give effect to the policies contained within the Official Community
Plan, the Island Local Trust enacted the Land Use Bylaw, dividing Mudge Island
into zones pursuant to s. 479(1)(a) of the
Local Government Act.
It
contains land use regulations for each zone, including regulations enacted
pursuant to s. 479(1)(c). The Fonsecas property is zoned rural residential.

[17]

Section 3.3 of the Land Use Bylaw sets out regulations applicable
in every zone, including the siting regulation under s. 3.3(4) of the Land
Use Bylaw, which is at issue in these appeals. Section 3.3(4) provides as
follows:

3.3. Siting and Setback
Regulations

(4)  Despite all other provisions in
this Bylaw, buildings and structures must be sited a minimum of 30 metres (98.4
feet) from and 1.5 metres (4.9 feet) above the natural boundary of a wetland,
watercourse, the sea or other body of water, except for barge/boat ramps,
stairs and walkways with an average maximum elevated floor height of 0.3 metres
(0.9 feet).

[18]

I do not think there can be any reasonable doubt about the following.
The Island Local Trust is empowered to pass a bylaw (by virtue of s. 479)
that creates zones. The zoning power includes the power to regulate the use, siting,
size, location and dimensions of buildings and other structures and uses that
are permitted on the land. The Island Local Trust is also authorized to enforce
its bylaws. There is also no reasonable dispute that the structures in issue on
the land are structures within the meaning of s. 479, hence the Island
Local Trust is empowered to regulate them. This latter proposition is subject
to the caveat that the Fonsecas argue that the seawall is not a structure for
the purposes of s. 479 for reasons I shall develop.

The Fonsecas Structures

[19]

It is sufficient for current purposes to record that the property has a
house set back more than 30 metres from the natural boundary of the sea.
It also has a deck, fences, and a stone and concrete seawall. The fences and
the seawall abut the seas natural boundary. The seawall is intended to prevent
erosion of the property by the sea. The property is also serviced by a gated
boat ramp. The gates, which sit atop the boat ramp, are extensions of the fence.

[20]

These structures, the Island Local Trust argues, do not comply with
s. 3.3(4) of the Land Use Bylaw. The Fonsecas constructed them without
contacting the Island Local Trust. If the structures are structures for the
purposes of the Land Use Bylaw, their location is not in conformity with its
siting requirements. The Land Use Bylaw defines structure in s. 1.1 as
meaning any construction and human made land alteration fixed to, supported
by, or sunk into land or water; for clarity septic fields, septic tanks,
absorption fields and related appurtenances, concrete and asphalt paving or
similar surfacing of the land, and retaining structures are considered
structures.

[21]

Beginning in 2012, the Island Local Trust began to attempt to
enforce the Land Use Bylaw by demanding the removal of the non‑conforming
structures. In May 2015, the Fonsecas applied to the Island Local Trust
for a development variance permit seeking permission to keep them. That
permission was granted for some structures, but denied for others, including
the deck, seawall and fences. The Fonsecas did not remove the offending
structures.

[22]

Eventually, two proceedings started in the Supreme Court. The Island Local
Trust sought a declaration that the structures violated the Land Use Bylaw and
should be removed. The Fonsecas sought a variety of declarations in support of
their position that the Land Use Bylaw did not apply to the structures.

The Judgment Below

[23]

The judge dealt first with the deck, stairs and fences. He rejected the
Fonsecas argument that the deck was actually a walkway, which is a permitted
use under s. 3.3(4). He concluded that the structures primary function
was as a deck and would be seen as such by any reasonable person. The judge
concluded that if the stairs could be used separate and apart from the deck to
permit access to the foreshore, then they could remain. He then went on to find
that the fences which sat on top of the seawall and gates at the top of the
boat ramp violated s. 3.3(4) and should be removed. It was material to his
decision that neither the fences nor the gates existed to prevent erosion by
the sea.

[24]

The judge reached a different conclusion about the seawall. After
rejecting certain constitutional arguments, not in issue here, he turned his
mind to whether the Land Use Bylaw applied to limit construction of a seawall.
In his view, this would require that the
Local Government Act
empowered
the Island Local Trust to abrogate a property owners common law riparian right
to protect property from erosion by the sea. He decided it did not and
therefore the Land Use Bylaw did not apply to the seawall.

[25]

The judge accepted first that a common law riparian right existed to
protect ones property from erosion caused by inroads of the sea. The judge also
accepted that the Island Local Trust had the authority to regulate the siting,
size and dimensions of structures through a bylaw by virtue of s. 479(1)(c)(i)
of the
Local Government Act.
He then reasoned:

[58]      However, that does not mean the Local Trust
Committee has the ability to prevent the Fonsecas from building an embankment
wall on the edge of their property, which would require a complete abrogation
of their common law riparian right to protect their property where it bounds
the sea. To do so, the
Local Government Act
and related provincial
legislation would have to either abrogate the common law right or authorize the
Local Trust Committee [to] abrogate the right.

[59]      Modification,
alteration, or abrogation of a common law right must be explicit or by
necessary implication. In respect to the latter, the implication must be
necessary and clear, not just reasonable. In the present case, it is neither
explicit nor necessarily implied.

[26]

The judge drew support for his view that the common law riparian right
had not been abrogated by legislation by relying on the reasoning of this Court
in
Bryans Transfer Ltd. v. Trail (City)
, 2010 BCCA 531. At issue in
Bryans Transfer
was whether ss. 9496 of the
Land Title Act
,
R.S.B.C. 1996, c. 250 modified the common law doctrine of accretion,
such that a landowner would need to apply through the process set out in the
Act
in order to vindicate riparian rights acquired over accreted land owned by the
Crown.

In the result, the Court of Appeal held that the statute lacked
the requisite clear intent to modify, alter, or abrogate the common law, either
expressly or by necessary implication. In applying
Bryans Transfer
, the
judge concluded that:

[63]      The scope of Bylaws is
valid only insofar as the authorizing statute permits. In the present case,
there is no specific extinguishment of the subject riparian right in the
authorizing legislation, the
Local Government Act
and the
Islands
Trust Act
, nor any reference to the subject riparian right. Also, I do not
find that the language has the irresistible clearness to conclude that the
subject right was extinguished by necessary implication. As such, the Bylaws
cannot operate to prohibit the construction of an embankment wall at the marine
boundary whose purpose is to protect against erosion.

[27]

Accordingly, the judge granted the declaration that s. 3.3 of the Land
Use Bylaw infringes the Fonsecas common law riparian right to protect the property
from erosion and is inapplicable to the embankment walls.

On Appeal

[28]

The issues on appeal and cross appeal are distinct. I will deal with
each separately.

[29]

The Island Local Trust contends that the judge fell into a series of
related errors.

[30]

First, he misunderstood the nature of riparian rights to prevent erosion
of property. These rights are not positive rights capable of being asserted
against and in the face of clear legislative intent to regulate them. They are
not a distinct form of property right. The Island Local Trust submits that there
was no basis on which the judge could properly distinguish the seawall from the
other structures to which s. 3.3(4) applied.

[31]

Second, he misapprehended the interpretive principle about legislation
abrogating common law rights. In the contention of the Island Local Trust,
that interpretive principle applies only where legislation might be interpreted
as altering, or authorizing the alteration of, common law rules or principles
(i.e., only where it might change the general law itself). It has no
application to an ordinary regulation like the Land Use Bylaw that makes
unlawful, as a public law matter, activities that remain lawful at common law,
as a private law matter.

[32]

Third, the judge improperly interpreted s. 479 of the
Local
Government Act
. The judge erred by, in effect, reading down the section so
that it did not authorize the bylaw regulating an erosion control structure,
contrary to the plain meaning of the legislation.

[33]

The Fonsecas, for their part, support the reasoning of the judge, but
also argue that the Island Local Trust has changed its position on appeal,
having argued below that the riparian right had been abrogated. Now, they say,
the Island Local Trust is impermissibly resiling from its earlier position and
recasting its argument.

Analysis

[34]

In my opinion, the judge fell into two errors in his analysis. It may
well be that he was led into error by the Island Local Trust which stressed the
argument that the right to construct a seawall to prevent erosion had been
abrogated by the regulatory scheme. From there, it was a short step for the
judge to deploy an approach to statutory interpretation that looks for
irresistible clearness and explicit targeting of the affected right in the
grant of legislative authority.

[35]

First, the judge erred in his approach to the statutory interpretation
of grants of legislative authority to pass zoning bylaws that regulate the
exercise of property rights. This error was confined to his consideration of
the seawall. In my opinion, he approached the issue of the authority to regulate
the other structures by applying the proper approach to statutory
interpretation. Had he applied that approach consistently, he would have
reached a different conclusion about the seawall.

[36]

Second, in my opinion, the judge erred in his approach to the riparian
right to protect ones property from erosion caused by the inroads of the sea.
In effect, he treated the right as a positive or special right, different in
its essential character from other property rights, that can be asserted in the
face of a regulatory scheme, in effect limiting the scope of the regulatory
bodys grant of statutory authority, unless that grant overrides the right
explicitly, either with irresistible clarity or by necessary implication. The
error lies, as I see it, in conferring on the riparian right a privileged
status, not shared by other types of property rights, and then searching for a degree
of specificity in a grant of authority to abrogate it.

[37]

The two errors, as I see them, are related. What I see as the error in
statutory interpretation may have sprung from the judges evaluation of the
nature of the property right. I will begin by considering the proper approach
to interpreting grants of authority to regulate property rights. I consider
that the zoning power granted here is appropriately viewed as regulating the exercise
of private common law rights as a matter of public law, and not as abrogating
those rights, which continue to exist as a private law matter between
neighbouring landowners. Approaching the issue this way leads me to the
conclusion that the zoning power applies to the regulation of all property
rights falling properly within its scope, irrespective of their differing
character.

The Approach to Statutory Interpretation of a Grant
of Zoning Authority

[38]

I begin by acknowledging two important propositions of
interpretation. First, it is commonplace that we must interpret the statutory
powers in accordance with the modern principle. This requires that
the words of a provision be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.:
Bell ExpressVu Limited
Partnership v. Rex
, 2002 SCC 42 at para. 26, quoting E. A.
Driedger,
Construction of Statutes
(2nd ed. 1983), at p. 87. While
plain meaning is important, plain meaning alone is not determinative because statutory
interpretation is incomplete without considering the context, purpose and
relevant legal norms:
McLean v. British Columbia (Securities Commission)
,
2013 SCC 67 at para. 43. This is so because words
that
appear
to have a clear meaning may in fact prove to be ambiguous once placed in their
context.

[39]

Second, the zoning powers of the local government should be interpreted in
accordance with the purposes of the
Local Government Act
and the
Islands
Trust

Act
. As Chief Justice Bauman explained in
Society of Fort
Langley Residents for Sustainable Development v
.
Langley (Township)
,
2014 BCCA 271:

[13]      Again, in the
context of municipal empowering legislation and bylaws enacted pursuant
thereto, this Court said in
Neilson v. Langley (Township
) (1982), 134
D.L.R. (3d) 550 (at 554 per Hinkson J.A.):

In the present case, in my opinion,
it is necessary to interpret the provisions of the zoning by-law not on a
restrictive nor on a liberal approach but rather with a view to giving effect
to the intention of the Municipal Council as expressed in the by-law upon a
reasonable basis that will accomplish that purpose.

[14]      In
United Taxi
Drivers Fellowship of Southern Alberta v. Calgary (City),
2004 SCC 19, Mr. Justice
Bastarache stated for the Court (at paras. 6 and 8):

[6]        The
evolution of the modern municipality has produced a shift in the proper
approach to the interpretation of statutes empowering municipalities. ... The
benevolent and strict construction dichotomy has been set aside, and a
broad and purposive approach to the interpretation of municipal powers has been
embraced...

...

[8]    A broad and purposive
approach to the interpretation of municipal legislation is also consistent with
this Courts approach to statutory interpretation generally. ...

[15]      These common law rules must be married with the
expressions of intent by the Legislative Assembly.

[16]      Generally, in
s. 8 of the
Interpretation Act
, R.S.B.C. 1996, c. 238 we are
told that:

8       Every enactment must be
construed as being remedial, and must be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects.

[17]      Specifically, under
s. 4(1) of the
Community Charter
, S.B.C. 2003, c. 26, we are
directed so:

4(1)      The powers conferred on
municipalities and their councils under this Act or the Local Government Act
must be interpreted broadly in accordance with the purposes of those Acts and
in accordance with municipal purposes.

[18]      Frankly, the Court can
take the hint  municipal legislation should be approached in the spirit of
searching for the purpose broadly targeted by the enabling legislation and the
elected council, and in the words of the Court in
Neilson
, with a view
to giving effect to the intention of the Municipal Council as expressed in the
bylaw upon a reasonable basis that will accomplish that purpose.

[40]

The interpretive principle to be applied is also set out in s. 187(1)
of the
Local Government Act:

187 (1) The powers conferred on
regional districts and their boards under this Act must be interpreted broadly
in accordance with the purposes of this Act and in accordance with regional
district purposes.

[41]

There is no doubt that a legislature may authorize the regulation of
private conduct, and in doing so may impair rights that might otherwise exist. As
Chief Justice Bauman said in
H. Coyne & Sons Ltd. v. Whitehorse
(City),
2018 YKCA 11 at para. 46, the impairment of private
rights lies at the core of the zoning power. The scope of regulation may
simply focus on the use, for example, a landowner may make of his or her own
land, but do so without affecting private property rights that exist at common
law as they govern relations between landowners. Alternatively, it is
conceivable that a statutory conferral of power to regulate may also affect,
impair or abrogate common law rules, principles, or rights as they run between
private persons. There is nothing in the scope of the zoning power at issue
before us that purports to displace or affect any common property rule that
governs the relations between private landowners.

[42]

It appears to me that on a plain reading of the text of s. 479, the
Island Trust Committee has the power to regulate the use of land and the siting
of structures. It has done so by the enactment of the Land Use Bylaw. This
power is also, in my opinion, consistent with the purposes and objects of the
statutory scheme, including the purposes set out in the
Islands Trust Act
.

[43]

Furthermore, I can see no basis on which one could interpret the power
to regulate structures as excluding a structure such as a seawall or, for that
matter, any other structure, on the basis that the structures purpose was to
protect the property from erosion.

[44]

The use of the general term structure to identify the subject matter
of regulation indicates a broad grant of authority. A structure is virtually
anything that is constructed or put together:
Blacks Law Dictionary
(11th
ed., 2019). Nothing in the grant of authority in s. 479 indicates an
intention to capture only some kinds of structures and not others. As the judge
correctly recognized, the seawall is a structure, the regulation of which is
captured at least by the plain language of the enabling legislation and the
Land Use Bylaw (as quoted above in para. 20).

[45]

The Island Local Trust has chosen to exercise its power by regulating
the siting of structures. The Land Use Bylaw stipulates that no structures can
be sited within 30 metres of, and 1.5 metres above, the natural
boundary of the sea. The seawall contravenes this aspect of the Land Use Bylaw.

[46]

The Fonsecas argue that the Island Local Trust is not authorised to pass
a bylaw regulating the siting of a seawall for another reason; namely, the
legislature did not intend to confer a grant of authority on the Island Local
Trust to regulate erosion control works (such as the seawall) because that
subject matter is more specifically dealt with, apart from the general zoning
power, in s. 312 of the
Local Government Act.
Accordingly, the
seawall, or other structures erected for the purpose of erosion control, cannot
be structures for the purposes of s. 479 which are subject to the Land Use
Bylaws siting requirements.

[47]

Section 312 of the
Local Government Act
expressly gives
local governments the power to establish requirements, by bylaw, that must be
met by persons undertaking the construction of works, to protect part of the
land mass of the regional district from erosion by action of the sea:

312 (1) In this section and section 313, "stream"
has the same meaning as in section 1 (1) of the
Water Sustainability Act
.

(2) A board may, by bylaw,

(a) establish requirements that
must be met by owners of dikes, and

(b)
establish requirements that must be met by persons undertaking the construction
of

(i) dikes,

(ii) works to maintain the proper
flow of water in a stream, ditch, drain or sewer in the regional district, or

(iii) works to reclaim or to protect part of the land mass
of the regional district from erosion by action of the sea or a stream or from
any other cause.

[48]

The Fonsecas argue that s. 479 does not cover structures the
purpose of which is to protect land from erosion. Power to regulate such
structures is given to a board under s. 312, not the Island Local Trust.
They contend that the power in s. 312 can only be exercised by the Islands
Trust Council. The Islands Trust Council has not enacted any bylaws intended to
restrict the ability of landowners to erect erosion‑protection works.
Moreover, the use of the word works in the section indicates the
legislatures intention to distinguish between works intended to protect
against erosion, such as a seawall, and structures subject to the zoning power.

[49]

Respectfully, I am unable to give effect to this argument. In the first
instance, the argument depends on the proposition that a more specific grant of
authority should be interpreted as derogating from a more general grant or as
not falling within the more general grant. This suggestion runs afoul of the interpretive
guidance found in the
Local Government Act
itself. Section 187(2)
reads:

(2) If

(a) an enactment confers a specific
power on a regional district or board in relation to a matter, and

(b) the specific power can be read
as coming within a general power conferred under this Act,

the general power must not be
interpreted as being limited by that specific power, but that aspect of the
general power that encompasses the specific power may only be exercised subject
to any conditions and restrictions established in relation to the specific
power.

[50]

Here, it seems to me, the general zoning power controls the siting of a
structure, and s. 312 permits the imposition of requirements on the
construction of a structure intended to control erosion. These requirements may
take many forms, including design, appearance, and materials, by way of
example.

[51]

In my opinion, the power to impose requirements under s. 312 for
the construction of erosion‑protection works does not limit the more
general grant of authority to regulate the siting of those structures found in
s. 479. Bylaws setting out requirements for the same structure or works
could be enacted under each provision, respectively, and a landowner would have
to comply with both.

[52]

Furthermore, I do not think that the use of works in s. 312
signals a legislative intent to distinguish between works and structures for
the purposes of s. 479. Works is arguably a more encompassing term than
structure, but the terms overlap and a work can certainly be a structure, and
a structure a work. On any reasonable view of the seawall at issue here, it is both
a work and a structure.

[53]

By relying on s. 187(2) of the
Local Government Act
to
arrive at this conclusion, I should not be taken as expressing any view on the
entity empowered to enact bylaws under s. 312. Section 187(2) makes
clear that, under the scheme, a specific power does not oust or limit a more
general power. That is sufficient to conclude that s. 312 does not limit
the Island Local Trusts authority to regulate the siting of the seawall
pursuant to s. 479.

[54]

In sum, I do not think there is anything in the grant of authority to
pass bylaws regulating the siting of structures that supports an argument that
the legislature did not intend to grant to a local authority the power to
regulate any structure sited on land. There is no basis to distinguish between
different types of structures according to the purpose for which they are built,
or the property right that is engaged in constructing them. The Land Use Bylaw
in issue is, therefore, effective to regulate a structure such as the seawall.
In my opinion, we are compelled to this conclusion once the approach to
interpreting grants of statutory power set out above is applied.

The Riparian Right to Protect Property

[55]

The judge based his analysis on his view that a riparian right to
protect property from erosion could be extinguished or abrogated only by clear legislative
intent. In that respect, the riparian right is inherently different from other
rights to use property in the absence of regulation.

[56]

I acknowledge the line of authority dealing with the clarity courts look
for before concluding that a legislature intended to abrogate common law
rights, rules or principles. But I am not persuaded that that line of authority
applies in this case.

[57]

A landowner has a right at common law to take steps to protect land from
erosion. In some instances, that right is a riparian right. It is clear that
such a right governs the private relations between neighbouring landowners. It
is based in common law rules governing neighbours private rights against each
other. Accordingly, a landowner who exercises a riparian right may have causes
of action against or defences to claims by neighbours if the landowner engages
in conduct that affects them.

[58]

From this, two points emerge. First, the existence of private property
rights running between adjoining landowners does not, without more, have any
implications for the scope of a grant of authority to a local government to
regulate the same subject matter. Second, the mere regulation of that subject
matter by a local government does not affect or abrogate the common law rules
governing the private relations between adjoining landowners.

[59]

In the case at bar, neither s. 479 nor the Land Use Bylaw purport
to change the common law rules or rights running between private landowners.
Accordingly, I do not think the cases relied on by the Fonsecas, which are
examples concerning whether a legislature has intended to alter or abrogate
common law rules, are of any assistance.

[60]

Moreover, many of the cases they rely on arose in the context of private
law disputes and do not deal with the effect of government regulation on common
law property rights or vice versa. For example,
Rhineland (Municipality) v.
Letkeman
, [1978] M.J. No. 33, 3 W.W.R. 97 (M.B.C.A.), concerned,
not regulation, but a permanent injunction sought by a municipality against a
farmer to prevent him from damming up a watercourse that threatened to flood
his property. Though the municipality had the authority to regulate surface
watercourses such as the one which traversed the farmers land, it had not
passed any bylaw doing soa fact relied upon by Justice OSullivan in arriving
at his conclusion:

[14]      In the case now before
us on this appeal, there is no suggestion that the municipality ever passed any
by-law determining that there was a surface watercourse across the defendant's
land. There was never any by-law to prevent the obstruction of such a surface
watercourse in any manner. There was no suggestion that the municipality ever
attempted to provide any outlet for a surface watercourse which it now alleges
ran across the defendant's land.

[61]

In the absence of any applicable regulation, the court held that the
farmer had a right to build the dike, and dismissed the appeal. But that case
is inapposite to one in which a bylaw
is
in force regulating the subject
matter in question, as it is here.

[62]

In addition, none of the cases cited to us establish that a riparian
right to protect property has a privileged or different status from other
property rights. Cases like
Laxton & Company v. West Vancouver
(District)
, 2010 BCSC 1297, confirm the existence of the right at
common law generally; an issue that is not contested in this proceeding. But,
in that case, the court

also distinguishes the existence of the right to
protect ones property at common law from the ability of a municipal government
to regulate that right through zoning bylaws:

[23]      Laxton argued that
he has a common law right to protect his property against the elements, which
right is not subject to regulation. To support this proposition, he took us
back to
Rex v. The Commissioners of Sewers for Pagham, Sussex
(1828), 8
B. & C. 355; 108 E.R. 1075, and
McBryan v. The Canadian Pacific Railway

Company
(1899), 29 S.C.C. 359. These indeed established the first part
of Laxton's proposition, which the district does not dispute. As between
adjoining landowners:

...every landowner exposed to the
inroads of the sea has a right to protect himself, and is justified in making
and directing such works as are necessary for that purpose....(per Bayley J. in
Pagham
at p. 361)

[24]      Where such a landowner acts
bona fide
and
does no more than is reasonably and honestly necessary for the protection of
his property, then an adjoining landowner who suffers damage as a result has no
claim. But that is not what concerns us here.
The question is whether a
landowner's exercise of that common law right can be the subject of municipal
regulation.

[25]
As a general
principle, that question must be answered in the affirmative.
There is no
doubt that the district has the power to pass zoning bylaws that regulate the
use of the foreshore and foreshore waters as well as the land:
Salt Spring
Island

Local Trust Committee v. B&B Ganges Marina Ltd.
, 2007
BCSC 892, upheld 2008 BCCA 544;
North Pender Island Trust Committee v. Hunt
,
2008 BCSC 391, 2009 BCCA 164; see also
Ovcharick v. North Saanich (District)
(1998), 46 M.P.L.R. (2d) 128 (B.C.S.C.), upheld (1999), 50 M.P.L.R. (2d)
147 (B.C.C.A.).

[Emphasis added.]

[63]

In short, the right to protect ones property from the inroads of the
sea, or other threats, is not a positive right of a nature that may operate to
circumscribe or limit a grant of statutory authority, nor does the right support
reading down a grant of regulatory authority.

Disposition

[64]

Ultimately the question before the court below and this Court is whether
the regulation of the siting of the seawall fell within the grant of authority
to the Island Local Trust and whether the Land Use Bylaw did so regulate its
siting. This is a matter of statutory interpretation. To the extent that the Island
Local Trust has recast its argument, I think it is appropriate for this Court
to consider the argument as reframed. The issue here is about interpreting
statutory authority. I see no prejudice to the Fonsecas in considering the
argument which now brings the real legal issues into proper focus. For the
reasons I have given, I would allow the appeal.

The Cross Appeal

[65]

The judge upheld the determination of the Island Local Trust that the
gates at the top of the boat ramp, the fences, and the deck or walkway be
removed. The issues here, as they are raised in the cross appeal, do not turn
on whether the Land Use Bylaw applies to these structures, at least in
principle, but whether the decisions that they be removed were reasonable or
were properly before the judge.

[66]

The Fonsecas allege the judge erred in ordering relief that had not been
sought in the petition (removal of the metal gates), removal of the fences
without a proper factual basis, and the removal of the walkway without
analysing its use, i.e., what had been a deck (and contrary to the Land Use Bylaw)
had since been converted to a walkway that did not violate the Land Use Bylaw.

The Gates

[67]

The contention here is that the removal of a set of metal gates at the
top of the boat ramp had not been sought in the petition. The petition sought
the removal of a deck, a fence and seawalls.

[68]

The factual context for this argument is the suggestion that the Island
Local Trust had made a demand for the removal of a concrete ramp structure
with large gates inside ocean setback but had dropped that demand during
discussions between the parties. It is clear that the Island Local Trust did
drop its demand for the removal of the boat ramp. The question is, does this
mean that when read with the petition, no order was sought to remove the gates
and the removal of the gates was included within the boat ramp issue.

[69]

The Fonsecas argue that if the Island Local Trust was seeking an order
that the gates be removed, they should have had notice of that claim so that
they could present evidence and make arguments about whether the gates are
properly part of the boat ramp, or whether they are structures for the purposes
of the Land Use Bylaw.

[70]

While I agree that a judge ought not to grant an order not sought by a
party, and that proper notice of what orders are sought should be given, I am
not persuaded that these principles are engaged on the facts. The Island Local
Trust did drop the boat ramp issue, but I think the fact that it considered
the gates on the boat ramp to be part of the illegal fences was clearly
communicated to the Fonsecas.

[71]

During the course of the dispute, the Fonsecas had applied for a
development variance permit related to the structures in dispute. That
application was approved, but only in part. On February 26, 2016, the Island
Local Trust informed the Fonsecas that the application for a variance in
respect of the [f]ences, fence footings, and gate attached to the fence at the
top of the boat ramp had been denied. Clearly, the position of the Island
Local Trust was that the gates were part of the fences. This is, in my view,
evident from the photographs in evidence. I do not think the judge erred in treating
the relief sought to remove the fences as including the gates or in treating
the gates, in fact, as part of the fences.

[72]

I would not accede to this ground of cross appeal.

The Fences

[73]

The simple point here is that the Fonsecas assert that the fences were
built before the current Land Use Bylaw came into effect, and that they did not
contravene any applicable bylaw when they were constructed. The fences may,
accordingly, be continued as a non‑conforming use pursuant to s. 528(1)
of the
Local Government Act
.

[74]

The Fonsecas argue that the bylaw in force when the fences were built stipulated
that no building or structure
except a sign, fence or pumphouse
, shall
be sited within six (6) metres (19.68 ft.) of the front end and rear
lot lines ...: s.
9
.4 D(i) of
the previous bylaw (emphasis added in factum). The issue is whether the
Fonsecas are correct that the fences, if they were constructed under the
previous bylaw, were exempt under the applicable setback rules.

[75]

The current Land Use Bylaw provides:

3.3. Siting and Setback
Regulations

(2) No buildings or structures
may be sited within setback areas established in this Bylaw, except a fence,
utilities, navigation aid, driveway, foot path, pump/utility house, fire
fighting water tower and signs.

(4) Despite all other
provisions in this Bylaw, buildings and structures must be sited a minimum of
30 metres (98.4 feet) from and 1.5 metres (4.9 feet) above the natural boundary
of a wetland, watercourse, the sea or other body of water, except for:

(a) barge/boat ramps; and

(b) stairs
and walkways with an average maximum elevated floor height of 0.3 metres (0.9
feet) and a maximum width of 1.5 metres (4.92 feet).

[76]

The relevant provisions under the prior bylaw were sections 9.4 D
and 4.1 A, and the definition of structure under that bylaw. Section
9.4 D provided:

9.4 Regulations Pertaining
to the R-3 Zone

The following regulations
shall apply to every development in all areas designated by this Bylaw as R-3:

D.
Siting

i)
Lots
Equal to or Less than Four Thousand (4,000) Square Metres in Area

On a lot
having an area equal or less than four thousand (4,000) square metres (.99
acre), no building or structure
except a
sign,
fence
or
pumphouse, shall be sited within six (6) metres (19.68 ft.) of the front end
and rear lot lines nor within one decimal five (1.5) metres (4.92 ft.) of any
side lot line, except that the minimum setback for an accessory building from a
rear lot line shall be two (2) metres (6.56 ft.).

[Emphasis
added.]

[77]

Section 4.1 A provided:

4.1 Floodplain Provisions
and Setback from Water

A.
Notwithstanding any other provisions of this Bylaw
, no
building except a boathouse or pumphouse or any part thereof shall be
constructed, reconstructed, moved or extended nor shall any mobile home or
unit, modular home or structure be located:

i) within
seven point five (7.5) metres (24.6 ft.) of the natural boundary of the sea, a
lake, swamp or pond;

...

[Emphasis added.]

[78]

It is apparent that both bylaws establish a minimum setback from the natural
boundary of the sea for certain types of structures. Those setback requirements
operate despite other provisions of the respective bylaw. That means they
operate to override other setback requirements found in other parts of the
bylaw, including exemptions from those requirements. I am persuaded that, in
respect of the prior bylaw, s. 4.1, rather than s. 9.4, sets out the
applicable setback, and prohibits the siting of a fence within the stipulated
setback, if it is a structure for the purpose of that section. Section 4.1
operates notwithstanding the other provisions of the bylaw, such as the
exemption for fences from the general setback requirement established by
s. 9.4. I take the view that s. 4.1 A governs and imposes the
applicable setback where the lot boundary in question is the sea, and the
exemption for fences found in s. 9.4 D is not applicable.

[79]

The issue reduces, in my opinion, to the question of whether the fences
(including the gates) should be considered a structure for the purposes of s. 4.1 A
of the previous bylaw.

[80]

It is certainly arguable that the use of the term structure in
s. 4.1 A could be read as being qualified by the preceding words in the
provision, which refer to buildings, mobile homes, or modular homes. Certainly
a fence is not a building or a dwelling. I do not think, however, that the
bylaw should be read so restrictively in light of the proper approach to the statutory
construction of local government powers. We must have due regard for the
purpose of the section, which is to limit the erection of substantial structures
close to the sea. Under the bylaw, a structure is defined as any construction
fixed to, supported by, or sunk into land or water. This broad definition
seems to me to support a reading of the section as restricting the location of
buildings (of all kindsexcept a boathouse or pumphouse), dwellings of various
kinds and any other structure that meets the definition, as certainly do the
fences built here.

[81]

I would not accede to this ground of cross appeal.

The Walkway

[82]

A walkway is a permitted use, although some aspects of its dimensions
are subject to regulation. The Fonsecas argue that the judge erred in treating
as a deck a structure that had been converted into a walkway and hence in
ordering its removal. They say the judge erred by not considering its current
use, after modification. The failure to consider its current use, they say, was
a legal error, relying on
Salt Spring Island Local Trust Committee v. B & B
Ganges Marina Ltd.
, 2008 BCCA 544.
Salt Spring Island
involved
an oil‑tank barge, moored in a marina on Salt Spring Island, which was no
longer being used as a vessel, but rather had been recommissioned as the office
and reception area for the marina. The Court of Appeal upheld the judgement of
Justice Tysoe (as he then was), who had found that the structure contravened
the Salt Spring Island Land Use Bylaw in force at the time, which set out sizing
restrictions for buildings and structures. Tysoe J. determined that the
barge was no longer properly characterized as a ship or vessel, but as a
floating building or structure which exceeded the bylaws size limits, given
its current use.

[83]

I do not think that
Salt Spring Island
can be taken as laying
down a general principle that what a structure is can only be determined by its
use. That case turned on unusual facts. Rather, I think that, although purpose
may bear on what something is, it is not the only or a necessary part of the
analysis. Often it is possible to identify what something is objectively, as I
think the judge did here.

[84]

The structure in question had undoubtedly been built and used as a deck
in the past. As originally constructed, it was an elevated platform extending
from the rear of the property, alongside the boat ramp, without stairs to the
boat ramp. After the dispute arose with the Island Local Trust, the Fonsecas
modified the structure by adding stairs to the boat ramp and dividing the
structure into two sections by means of a railing, one section of which is used
for storage.

[85]

Looking at the photographs, I fail to see how the modifications
transformed the structure from something prohibited (a deck) into something
permitted (a walkway). I cannot conclude the judge fell into error in
concluding that the structure was objectively a deck, nor that the Island Local
Trusts determination that the structure was a non‑compliant deck can be
disturbed.

[86]

I would not accede to this ground of cross appeal.

Disposition

[87]

I would dismiss the cross appeal.

Conclusion

[88]

I would allow the appeal and dismiss the cross appeal. In my opinion,
each party should bear their own costs of the appeal.  The Island Local Trust
did in certain respects recast the argument on appeal from that advanced
below.  Had it framed the issue properly before the judge, the judge may not
have fallen into error and the appeal may not have been necessary. I see no
reason, however, to depart from the ordinary costs rule respecting the cross
appeal.

The
Honourable Mr. Justice Harris

I agree:

The Honourable Mr. Justice
Goepel

I agree:

The Honourable Mr. Justice Abrioux


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

S.R. v. A.B.,

2021 BCCA 28

Date: 20210122

Docket: CA46467

Between:

S.R.

Respondent

(Claimant)

And

A.B.

Appellant

(Respondent)

Before:

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Abrioux

On appeal from:  An
order of the Supreme Court of British Columbia, dated
September 25, 2019 ([
S.R.
]
v.
[
A.B.
], Vancouver
Docket E121370).

The Appellant, appearing in person

(via videoconference):

A.B.

Counsel for the Respondent

(via videoconference):

J.E. Roos

Place and Date of Hearing:

Vancouver, British
  Columbia

December 3, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 22, 2021

Written Reasons of the Court

Summary:

The parties have two
children together. By order dated September 25, 2019, the father was granted
limited supervised parenting time with his younger child. The order varied a
previous order granted in 2017, which had in turn varied a 2013 order. The 2013
order provided that the parties older child would reside with the father, and
the younger child with the mother during weekdays, and the children would
reside together with each parent on alternate weekends. This order was varied
in 2017 to provide that each child would reside exclusively with each parent:
the older child with the father and the younger child with the mother. That
arrangement was extended by a 2018 order. The father appeals the 2019 order on
the grounds that the judge erred in (1) finding, absent expert evidence, that
he had alienated his child; and (2) misapprehending evidence related to his
compliance with past orders. Prior to the hearing the Court, by memorandum,
requested submissions from the parties on the validity of the 2019 order. Held:
Appeal allowed. The 2018 order was made on the judges own motion after the
2017 order had expired. The judge therefore erred in law in basing his decision
on a variation of the 2017 order when the extant order was the 2013 order. The 2019
order is set aside with the exception of a term prohibiting the parents from
discussing the litigation or parenting arrangements with the younger son; the 2013
order governs parenting arrangements in respect of the younger son, the older
child having reached the age of majority.

Reasons for Judgment of the Court:

Introduction

[1]

This appeal arises from an order dated
September 25, 2019 (or the 2019 Order) which was made in the context of
a high-conflict and protracted matrimonial dispute. The judge granted the father
limited supervised parenting time with his youngest son A. who was then 11
years old. At the time the 2019 Order was made, the chambers judge had been
seized of the matter for almost two years and was well aware of the parties
circumstances.

[2]

The appellant father seeks to set aside the 2019 Order in favour of an
order for three months of equal parenting time and the preparation of a views
of the child report pursuant to s. 211 of the
Family Law Act
,

S.B.C.
2011, c. 25 [
FLA
]. He also seeks an order directing that his older
son B., who resides with him, be interviewed by Justice Gomery, who made a
temporary parenting order for the 2018 year-end holiday season when the judge
was unavailable to hear the application.

[3]

The hearing of this appeal took place approximately 15 months after the 2019
Order was made. Furthermore, the 2019 Order provides that the parties are
entitled to review the parenting arrangement in January 2021.

[4]

The father also seeks to adduce fresh evidence, being reports authored
after the 2019 Order was made and which relate to supervised access visits
which have occurred since then.

[5]

For the reasons that follow, we allow the appeal, although not on the
grounds raised by the father, which we need not address. Nor is it necessary to
address the application to adduce fresh evidence. Instead, as explained below, we
allow the appeal on the basis the judge erred in purporting to extend an
expired order, which made the parenting arrangements in the 2019 Order invalid.

Background

[6]

In light of our disposition of the
appeal it is necessary to set out the background in some detail.

[7]

The parties were married in 1993 and divorced in 2013. They have two
children, B. and A., born in 2001 and 2008 respectively.

[8]

On June 5, 2013, following a five-day
trial, Justice N. Smith ordered,
inter alia
, that the parties have
joint custody of the children, their residence to be with the mother from 6:00
p.m. on Sunday to 6:00 p.m. on Friday and with the father from 6:00 p.m. on
Friday until 6:00 p.m. on Sunday. This schedule was ordered to continue and not
be affected by statutory holidays. The childrens Christmas holidays, spring
breaks, and summer vacations were to be divided equally, with the children
living with each parent on alternate weeks (the Trial Order).

[9]

Approximately five months later, on November 6, 2013 the trial
judge varied the Trial Order since the older son B. had been running away from
the mothers home to be with the father. He ordered that B. live with the father
on weekdays, and that the children spend alternate weekends together with each
parent (the November 2013 Order).

[10]

Over the next five years, the parties returned frequently to court. As
of December 2018, the parties had appeared on 44 occasions. The majority of
those appearances are not relevant to this appeal, but at least two of those
appearances involved unsuccessful applications brought by the father to vary
A.s residence.

[11]

On the April 10, 2015, occasion, Justice Bowden commented that
the parenting arrangements have been determined by this court and the
applicant has not provided any evidence of a change in circumstances since the
previous orders were made. Since the application was dismissed on the same
basis as a previous application brought by the father, Bowden J. ordered
that the father not bring another application without leave of the court, or
until May 1, 2016. Efforts by the father to bring further applications
before that date were dismissed.

[12]

On September 27, 2017 the mother filed a notice of application in
which she sought compensatory parenting of A. and an order that she and B.
participate in family counselling. She also sought enforcement of prior court
orders and that the father pay a fine for his wrongful denial of parenting time
(the September 27, 2017 Application). Her notice of motion relied on eight
different affidavits she had filed in the course of the proceedings.

[13]

The September 27, 2017 Application contained the following
alternative claim for relief:

[A.]s change of Residence and School

Upon [A.]s request, and in order to minimize damage on [B.]
due to custody battles; if the Judge finds this to the childrens best
interest,

13. Order to change [A.]s
residence to reunite our children,

14. Order that during school time [A.]
spends every other weekend with the [mother] from Friday 7 PM to Sunday 7 PM

15. Order that during holiday, [A.]
spend time with each parent on 50-50 basis

16. Order that [the mother] can
visit both children [B.] and [A.], in the middle of the week, for few hours in
the evening

17. Order that the [father] provides his phone number to [the
mother] and provides the means so the [mother] can call [A.] on daily basis

[14]

It is significant that in his application response, the father consented
to the alternative relief concerning the change of A.s residence. He opposed
the other relief sought. His response said he would rely on six affidavits he
had filed in the proceedings.

[15]

On October 11, 2017, the September 27, 2017 Application came on for
hearing in regular Family Chambers before the judge, who had had no prior
involvement with the parties. Both parties were self-represented.

[16]

After listening to the parties for approximately 40 minutes, the judge
said he was going to change the court order. He then gave brief oral reasons
for judgment. In that regard he said:

[1]        THE COURT: What has happened here, folks, is that
your children have become pawns of a dispute which the two of you do not seem
to be able to get over. I am not sure what the whole basis of that is. Most
every couple that comes to court eventually gets to the stage where they let go
of the difficulties that happened in their relationship.

[2]        But it is telling to me that the [father] here,
the former husband, begins his presentation talking about what happened in the
1990s and how he lost money as a result, allegedly, of his former wife and her
aunts activities. It suggests to me that, sir, that you are not able to let
things go and that is clouding your judgment.

[3]        The unfortunate thing is that this is having a
dramatic effect on your children and everybody needs a timeout, and the timeout
is going to be this: [A.] is going to reside with his mother exclusively until
the 28th of February, 2018, and [B.] is going to reside with you exclusively
until the 28th of February, 2018. You are entitled to call [A.] every Tuesday
night at seven oclock and every Saturday night at seven oclock for a half an
hour conversation, during which time you and/or [B.] can speak to [A.]. On
Wednesdays at seven oclock and on Sundays at seven oclock, Maam, you are
entitled to call [B.] and speak to him.

[4]        [S.R.]: Yes.

[5]        THE COURT: And [A.] can speak to [B.] at that
time. That is what is going to happen between now and then because these kids
need a break. You both need a break. Running back and forth to court all the
time  30 applications since the trial in 2013  is craziness. You can spend
your entire time in court and ruin your childrens lives, or you face a
judgment like I have made today, which is both of you are going to have a
relationship with one child, which you can try to repair with that one child,
but other than that, you are only going to talk to the other child on the
telephone.

[6]
I am seizing myself of any court
applications, and there are to be no court applications.

[7]        Sir, is there some reason you are
smirking?

[8]        [The father]: May I talk, Your
Honour?

[9]        THE COURT: Just a second. I have
asked you a question. Is there some reason you are smirking when I said I am
seizing myself of applications?

[10]      [The father]: The [mothers]
seeking for order [
sic
] was for [A.] to be reunited with his brother,
and none of us agreed to separate the children like this.

[11]      THE COURT: Well, it does not matter what you have
agreed to, sir, because that is the order I have made. My job as a judge is to
hear from people and then make a decision that is in the best interests of
these kids, and what a nine-year-old and a 16-year-old do not need is constant
battles about going back and forth to a parent. So everybody is going to have a
timeout, and that is what I have ordered.

[12]      [The father]: May I sit?

[13]      THE COURT: Yes, please
do. Now, there are to be no applications until after the 28th of February,
2018, but after February 28th of 2018, both of you can file an application,
exchange it, get in front of me for a full day application and I will see what
happens from that point on, and if it is the case that things have calmed down,
then maybe I will try some reintegration of a parent with a child. But if you
are still verbally arguing or making things difficult for each other, then
maybe the regime will continue.

[17]

The order arising from the reasons is as follows:

THIS COURT ORDERS THAT,

1)

[A.] shall
reside with the [mother], exclusively, and [B.] shall reside with the [father],
exclusively until February 28 2018.

2)

The [father]
shall have telephone access with [A.] from 7pm on Tuesday and Saturday for half
hour and the [mother] shall have telephone access with [B.] at 7pm on Wednesday
and Sunday for half hour at which times the children may speak with each other
during the call.

3)

[The
judge] is seized of any further applications.

4)

No
applications are to be filed until after February 28 2018 and the applications
must be set before [the judge] for a full day.

5)

The
application filed by the [mother] on September 27 2017 is adjourned generally.

[The 2017 Order.]

[18]

The effect of the order was that A. would reside exclusively with
his mother while B. would live exclusively with his father. Contact between the
non-resident parent and their child would be limited to two telephone calls per
week. The two brothers would be separated from each other.

[19]

The 2017 Order was not appealed.
That is not surprising given that the parties were self-represented, the order
was interim in nature, could only be appealed with leave and in any event would
expire by its terms on February 28, 2018.

[20]

On March 26, 2018 the mother filed a notice of application in which
she sought,
inter alia
, an order that A. reside exclusively with her
while B. would reside exclusively with the father. That application was set for
April 6, 2018 before the judge. In advance of the hearing the father sent
a letter to the Registry requesting an adjournment because he had been
diagnosed with pneumonia. He provided a certificate of health status confirming
the diagnosis.

[21]

Notwithstanding the request for an
adjournment, the hearing proceeded on April 6, 2018 in the fathers absence.
The judge heard submissions from the mother for approximately one hour. At the
end of the hearing, on his own motion, he ordered that [t]he order pronounced
on October 11, 2017, is hereby extended until further order of this
court. The judge also made certain orders respecting A.s passport, and
permitted the mother to travel with A. to the United States and outside Canada
on certain conditions. The judge also ordered that [the] outstanding issues in
this application are adjourned generally (the April 2018 Order).

[22]

The April 2018 Order was not appealed.

[23]

In December 2018, the father applied for parenting time with A. for the
upcoming seasonal holidays. The parties appeared before Justice Gomery on
December 19, 2018, since the judge was not available. At that time, Gomery J.
made an order which provided the father with
limited unsupervised holiday parenting time with A. (the December 2018 Order).
Justice Gomery found there was no evidence that A. did not wish to see or spend
time with his father and that there is no history of family violence and no
suggestion that [A.] will not be physically safe and secure in his fathers
care: [
S.R. v. A.B.
] (December 19, 2018), Vancouver Docket E121370
(B.C.S.C.) at para. 9.

[24]

In his reasons for judgment Justice
Gomery noted:

·

while the fathers frustration
with the current parenting arrangement is understandable, his attempts to get
his 10-year old son to take sides were inappropriate and not in [A.s] best
interests: at para. 13; and

·

there is some justification for
the [mother]s concern that A. would be subjected to pressure from his father
and brother if this application is allowed, and there would be at least some
risk to A.s emotional health: at para. 14.

[25]

Justice Gomerys reasons also provided:

[18]      [The mother] has taken the view that [the judges]
order prevents [the father] or [B.] from coming into her neighbourhood or
showing up where [A.] is, and she has said as much in correspondence to [the
father].

[19]      The order does not say that. [The mother] directed
me to paragraph 6 of the order made by Justice Smith on November 6, 2013.
I think that Mr. Justice Smiths entire order was replaced by the order of
[the judge], and even if paragraph 6 of the earlier order somehow survived, it
only limited being in the vicinity of the other partys residence. [The
mothers] aggressive interpretation of [the judges] order is incorrect.

[20]      I am troubled by [the mothers] decision to record
all of [A.]s telephone conversations with his father. In my view, [A.] and his
father should be afforded some privacy in their relationship.

[21]      Taking all this into account, I am not persuaded
that [A.]s emotional health is necessarily at risk if he spends time with his
father and his brother over Christmas. There is some risk to his emotional
health either way. He is emotionally bonded with both parents and he needs
contact with both of them at this important time of the year.

[22]      I have considered [the mothers] alternative
submission, that access by [the father] take place under supervision. I think
that the risk of inappropriate conduct by [the father] or [B.] during the visit
can be addressed by the following orders:

(a)        The parties will not:

1.         Question [A.] about the
other parent or time spent with the other parent beyond simple conversational
questions.

2.         Discuss with [A.] this
court proceeding or any inappropriate court or legal matters.

3.         Blame, criticize or
disparage the other parent to [A.]; or

4.         Encourage [A.] to seek
any change in the parenting arrangements that have been, are, or will be
ordered by the Court.

(b)        [The father] will not
encourage or permit [B.] to speak to [A.] in any way he would not himself be
permitted under this order.

[23]      On this basis, I think that an overnight stay is in
order and the length of the visit should be the same as was historically the
case under the order of Justice Smith.

[24]      Unless there is some reason to change the dates, I
would repeat Justice Smiths order, that [A.] should be with the [father], from
10:00 a.m. on December 25 to 7:00 p.m. on December 30. I order that the pickup
arrangements be as set out in paragraph 1(d) of the notice of application.

[25]      My order is only for
this Christmas period. The parenting over future holidays will be addressed by [the
judge].

[26]

The next day, that is December 20, 2018, the father filed an
application in which he sought additional unsupervised parenting time with A.
to include every other weekend, and Tuesdays and Wednesdays after school on
alternating weeks. This is the application which was ultimately heard in July
2019 and which resulted in the 2019 Order under appeal. The notice of application
does not allege any material change in circumstances arising since the 2017
Order. Instead, Part 2: Factual Basis focused on prior orders of
the court, evidence that was before the judge when he made the 2017 Order, and
the fathers alleged breaches of that order.

[27]

A week later, on December 27,
2018, the mother filed an application seeking preparation of a views of the child
report to obtain A.s views regarding future parenting arrangements, and requesting
that the 2017 Order, as extended on April 6, 2018, be continued until the
report was prepared. Alternatively, the mother sought an order that A. have
supervised visits with the father one weekend per month, and that the father cover
the cost of those visits.

[28]

The mother also filed a further application on June 26, 2019,
seeking an order that the father obtain leave of the court before bringing any
further applications and that she be entitled to travel outside of Canada with
A.

[29]

That day, the mother also filed her materials responding to the
appellants application for additional parenting time. In those materials, she
raised concerns about the fathers behaviour towards A., including that he had,
contrary to Justice Gomerys order, pressed A. during the 2018 holiday
parenting time with respect to whom he wanted to live with.

[30]

These three applications initially came on for hearing before the judge
on July 4, 2019. Since the appellant had recently received the mothers materials,
the hearing was set over to July 25, 2019 so that the father would have an
opportunity to provide a full response. In the course of submissions, the judge
indicated on several occasions that he had made findings of fact at the time of
the October 11, 2017 hearing and the onus on this application was on the father
to show a material change of circumstances since that date.

[31]

The parties re-appeared before the judge on July 25, 2019. The
judge acceded to the fathers counsels request that it would be appropriate
for him to speak directly with A., then 11 years old. He would give reasons for
judgment thereafter. That conversation occurred on August 21, 2019.

The Reasons

[32]

On September 25, 2019, the
judge issued his unreported reasons for judgment, which in part refer to the
circumstances of his prior orders: [
S.R. v. A.B.
] (September 25, 2019),
Vancouver E121370 (B.C.S.C.) (the Reasons). He explained that at the time of
the 2017 Order, he had concluded that there had been attempts at, for a lack
of a better term, alienation or undue influence exerted by  [the father], and
the elder child, [B.]  in regards to [A.] : at para. 4. He noted that the
fathers conduct had included over-holding A., not returning him at the agreed
times, expressing statements to [him] of a negative nature about [the mother]
and encouraging  [B.] to do the same: at para. 5. He regarded B. as
having already been virtually alienated towards the mother under the fathers
influence.

[33]

The judge also made certain comments about his conversation with A.:

·

A. appeared comfortable ... [and] that in terms of a level of
comfort, he was able to smile and engage and was not outwardly distressed;

·

the conversation for the most part confirmed the version of
events attested to by the mother but denied by the father. Specifically, A.
volunteered that during his visit with his father at Christmas, he felt that he
was being pressured about changing his living arrangements and, despite the
express words of the order of Mr. Justice Gomery, his father brought up
the topic of where he should live;

·

A. expressed a lack of comfort when his father and B. showed up
unexpectedly at A.s sporting and other events. In this regard, A. recited
additional incidents of contact that were not deposed to by the [ mother]; and

·

A. expressed that he loves his dad but desires not to see him
because of the stress associated with contact.

[34]

On several occasions in the Reasons, the judge noted his concern that
the father could not abide by court orders but he also recognized that a child having
no personal contact with a parent generally may be unhealthy in the long‑term.

[35]

The judge summarized the situation as follows:

[23]      So again, I have a
father who cannot abide by court orders, but I know that having no personal
contact with a parent generally is not a good thing for a child, and absent
threats of physical violence directed at the child, non-contact is not healthy
in the long term. As indicated, a short-term timeout can sometimes be effective
to resolve the problems. That did not happen here and that did not work in
resolving the problems.

[36]

Accordingly, the judge:

·

dismissed the fathers application for specific parenting time;

·

ordered that the telephone contact previously ordered continue;
and

·

ordered that the father be permitted supervised access with A.
every second Saturday of each month for four hours, with the appellant to bear
the costs of the professional supervision agency, essentially as sought by the mother
in her application filed December 27.

[37]

The judge also reaffirmed the prior order
that neither parent discuss the litigation, residential arrangements, or access
arrangements with A., (at para. 4) with the order also providing that the
parties were
entitled to review [the] parenting arrangement in January 2021
by way of application.

Issues on Appeal

[38]

In his amended factum, the father submits that the judge erred by:

a)

finding, absent
expert evidence, that he had alienated A.; and

b)

misapprehending
evidence respecting his compliance with prior orders.

[39]

The mothers position as set out in her amended factum is that the judge
made neither an error in principle nor error in law, nor did he significantly
misapprehend the evidence in dismissing the fathers application to vary the
October 17, 2017 order.

[40]

In light of our conclusion on an additional issue as explained below, it
is unnecessary to address the issues advanced by the father. We turn to the
additional issue now.

Additional Issue on Appeal

[41]

On November 30, 2020, the Court, by memorandum (the Memorandum),
requested the parties submissions at the hearing of the appeal as to the
validity of the order under appeal, being the September 25, 2019 order in
that:

·

the order of September 25, 2019, varied the order of
October 11, 2017;

·

the October 11, 2017 order in turn purported to be a
variation of the order of Justice N. Smith dated November 6,
2013;

·

however, the October 11, 2017 order expired on
February 28, 2018; and

·

despite the expiry of the October 11, 2017 order, the
judge purported to extend that order on April 6, 2018, until further
order of the court.

Accordingly, the question is: could the judge on his own
motion extend an expired order?

Discussion

[42]

Neither the notice of application
filed December 20, 2018 nor the Reasons identify the parenting order which
the father sought to be varied. The parties agreed, however, that the order in
question was the 2017 Order which provided that A. reside exclusively with the mother
and B. reside exclusively with the father, with the children each having
telephone access with their non-resident parent.

[43]

We are of the view that the 2017
Order varied the Trial Order as varied by the November 2013 Order. Accordingly,
we disagree with Gomery J.s view expressed at para. 19 of the December 2018
Reasons that
Mr. Justice Smiths entire order was replaced by the
order of [the judge].

[44]

In that regard, t
he Trial Order provided
that [p]ursuant to the
Divorce Act
the [mother] and the [father] shall
have joint custody of the children, with the parenting arrangements ordered
pursuant to the
FLA
. A prerequisite to variation under either statute
requires proof of a material change of circumstances:
Williamson v.
Williamson
, 2016 BCCA 87 at paras. 2934.

[45]

As stated earlier, however, this appeal need not be decided on
the grounds raised or arguments made by the parties in their factums, and in
particular on whether a material change in circumstances had been established.

[46]

In response to the Memorandum,
counsel for the respondent referred the Court to
Sutherland v. Reeves
, 2014
BCCA 222 and
Rogers v. Taylor
, 2015 BCCA 244.

[47]

It was the mothers submission
that the 2017 Order, when considered in its proper context, did not expire on
February 28, 2018. She relies on
Sutherland
and the statement of
the Chief Justice:

[31]

court
orders are not interpreted in a vacuum. This Court has recently described the
correct approach to the interpretation of court orders (
Yu v. Jordan
,
2012 BCCA 367 at para. 53, Smith J.A.):

[53]      In my view, the
interpretation of a court order is not governed by the subjective views of one
or more of the parties as to its meaning after the order is made. Rather an
order, whether by consent or awarded in an adjudicated disposition, is a
decision of the court. As such, it is the court, not the parties, that
determines the meaning of its order. In my view,
the correct approach to
interpreting the provisions of a court order is to examine the pleadings of the
action in which it is made, the language of the order itself, and the circumstances
in which the order was granted
.

[Emphasis added in original.]

[48]

The mothers position is that it was not objectively reasonable to
conclude that on October 11, 2017 the judge intended that as of
March 1, 2018 the parenting arrangements would revert to the November 2013
Order or that the parties would be left in limbo. Rather his intention was
that the 2017 Order would not expire and he would at a later time decide
whether it should be varied or extended. She argues that both on October 17,
2017 and April 6, 2018, the judge considered the best interests of the
children and was entitled to proceed as he did even without submissions of either
party and in the appellants absence.

[49]

We do not accept this submission for several reasons and
dispose of the appeal on the basis that the 2017 Order
expired on February 28, 2018, at which point it became ineffective: see
Burbank
v. Garbutt,
2012 BCSC 190 at para. 28;
Maxwells Plumbing and
Heating Ltd. v. British Columbia,
2017 BCCA 285 at para. 2.
Accordingly, in September 2019 the judge erred in law by basing his decision on
a variation of the 2017 Order when the extant parenting order was in fact the
Trial Order as varied in November 2013.

[50]

First of all, the foundation for the 2019 Order under appeal is the 2017
Order which was then purportedly extended by the judge on his own motion on
April 6, 2018. Although the 2017 Order was not appealed, it is our view,
for reasons we shall explain, that it was problematic for a number of reasons.

[51]

Rogers
involved an appeal of a spousal support order which was
made without an application or evidence. Justice Bennett, for the Court, in
granting the appeal explained:

[12]

Generally,
a court should not make an order on an matter that was not before it (
Naderi
v. Naderi
, 2012 BCCA 16 at para. 22 and
D.W.H. v D.J.R.
, 2013 ABCA
240 at para. 42). Sometimes such orders will arise during the course of an
application, and depending on the circumstances, may not be wrong. Here,
however, neither party was heard on the application, nor was there was any
evidence upon which to base the order. As a result, an unfairness has occurred
with respect to Mr. Rogers.

See also
Liapis v. Keshow
, 2020
BCCA 28 at para. 15.

[52]

While the circumstances here were somewhat different than in
Rogers,
the reasoning nonetheless applies. In October 2017, neither party requested the
time out imposed by the judge and that order was in fact contrary to the
alternative relief sought by the mother that A.s primary residence change to
be with his father and to which he consented. The 2017 Order, which was a
variation of the November 2013 Order, was also made without any reference or
analysis in the judges reasons to the requirement of a material change in
circumstances.

[53]

Accordingly, both parties were prejudiced at that time.

[54]

This prejudice or unfairness was compounded when on April 6, 2018,
the order was extended on the judges own motion and in the fathers absence, due
to medical reasons that were not in dispute.

[55]

In his Reasons, the judge also referred to his decision of October 11,
2017 and explained certain of the findings he had made that day. The difficulty
is that the judge made no findings in his October 11, 2017 reasons. In our view,
this further undermines the basis for that order and was unfair to the parties,
including as to their ability to consider an application to seek leave to
appeal what was intended to be an interim parenting order.

[56]

We add that the judge appears to have implicitly accepted certain of the
allegations made by the mother that the fathers conduct had breached the 2017
Order, for example, the view that his order(s) prevented the father and B. from
visiting the neighbourhood where A. and his mother resided. Justice Gomery had
not accepted this interpretation of the judges order in December 2018: December
2018 Reasons at para. 19.

[57]

In any event, in our view the
correct interpretation of the October 11, 2017 order is that the time
out expired on February 28, 2018 and it was for the parties to file any
applications or reset any adjourned application after that date at which time:

if you are still verbally
arguing or making things difficult for each other, then maybe the regime will
continue.

[58]

When we consider the brief reasons for judgment of October 11, 2017,
it may well be that the judge did not appreciate what we consider to be the
legal effect of the order; that is, upon a further application after
February 28, 2018, the extant orders would be the Trial Order as varied by
the November 2013 Order. Those were the extant orders at the time of the October
2017 hearing.

[59]

Accordingly, we conclude that the appeal should be allowed and the order
of September 25, 2019 should be set aside in its entirety with the exception of
para. 4 which pertains to the prohibition on both parents from discussing
the litigation or parenting arrangements with A. Ongoing parenting arrangements
in relation to A., (B. having now reached the age of majority), are governed by
the Trial Order as varied by the November 2013 Order. Pursuant to the terms of
that order, A. resides with his mother during the week and spends alternate
weekends with his father. Those weekend visits should commence January 29,
2021. Either party is at liberty to apply to vary those parenting arrangements.
If either party so applies, then the father will presumably file the evidence
he considers to be of assistance to his position.

[60]

We add that, while allowing the appeal, we are mindful of A.s
statements to his mother and the judge that in late December 2018, when
exercising unsupervised parenting time, the father breached Gomery J.s
order by attempting to pressure A. about the parenting arrangements.

[61]

This allegation is vehemently denied by the father. If true, however, while
not a permissible excuse, it occurred in the context of a father who had been denied
in‑person parenting time with his son from October 11, 2017 to late
December, 2018.

[62]

There have been allegations of misconduct in relation to both parties
and we note the concerns which we consider were appropriately raised by Gomery J.
regarding the respondent recording A.s conversations with his father.

[63]

Suffice it to say that the parties must comply with all court orders
including para. 4 of the September 2019 Order.

The Judges Decision to Declare Himself Seized of Further Applications in This
Proceeding

[64]

On October 11, 2017, at the conclusion of the application which is at
the core of this appeal, the judge made an order that he was seized of any
further applications in this proceeding. He repeated this order on September
25, 2019.

[65]

In this Court, the father submitted that any further hearings in the
Supreme Court should be before a different judge. Essentially his position is
that he was not provided with an opportunity to be heard before the 2017 Order
was made and that the interactions between himself and the judge that day and
on subsequent occasions show that he has not been dealt with fairly.

[66]

This Court has previously stated that judges may declare themselves seized
whenever it is in the interests of justice to do so:
Dhaliwal v. Beloud,
[1996]
B.C.J. No. 1459 (C.A.) at para. 25 [
Dhaliwal
].

[67]

The practice of a judge seizing themselves is common in high-conflict
family cases, where it offers several practical advantages. As Justice Rowles
observed in
D.M.M. v. T.B.M.,
2011 YKCA 8:

[4]        It may be helpful to
observe at the outset that it is not unusual for a judge to become seized of
proceedings in parental alienation or other high conflict family law cases.
Such a practice was commented upon by Martinson J. in
A.A. v. S.N.A.,
2009
BCSC 387 at para. 81. In One Case-One Specialized Judge: Why courts have an
obligation to manage alienation and other high-conflict cases, (2010) 48
Family Court Review 180, she elaborated on the rationalization for adopting
such a practice.

[68]

Justice Martinson explained in
A.A. v. S.N.A.,
2009 BCSC 387, that
it is imperative in high conflict family cases generally  that one member of
the Court take charge of the case. This is commonly referred to as becoming
seized. Justice Martinson explained:

[78]      The
reasons for doing so for all cases are obvious. The judge will be familiar with
the case so the litigants do not have to explain the situation over and over
again. It avoids judge shopping to try to get a better result. It prevents
inconsistent approaches. It saves legal and other costs. There will be times in
dealing with some cases when it is not convenient or practical to do so.

[69]

Nonetheless, becoming seized carries risks. As the Court explained in
N.R.G.
v. G.R.G.,
2017 BCCA 407 [
N.R.G.
]:

[
60
]      There
is much wisdom in Madam Justice Martinsons observation that a family unit may
benefit from a judge seizing him or herself of a case. That does not mean,
however, that the seized judge should remain seized to the last application
filed. The very fact the judge is seized of the case increases the opportunity
to develop an impermissible point of view about the case or the parties, and
emphasizes the vital requirement of assiduous objectivity.
All trial judges
will know there may come a time in the conduct of a case when the judge says,
I have done my best and should pass this to fresh eyes
.

[
Emphasis added.]

[70]

This then raises the question as to whether this Court has jurisdiction
to review a decision by a judge to be seized of a matter. In
Dhaliwal,
Justice
Cummings stated:

[27]      Whether or not a judge
agrees to be seized of a matter is a decision which lies within the ambit of
that judges discretion. An appeal court should only interfere if a judge was
clearly wrong in the exercise of that discretion

[71]

In
Dhaliwal,
the Court declined to intervene on the
grounds that the judges decision was correct: at para. 27. In
Insurance
Corp. of British Columbia v. Hoang,
2002 BCCA 714 (Chambers), Justice Smith
noted, in denying leave to appeal a decision to become seized, that the Court
has never interfered with the manner in which the Supreme Court conducts its
business: at para. 6. In
The Owners, Strata Plan K855 v. Big White
Mountain Mart Ltd.,
2014 BCCA 397 [
Strata Plan K855
], the Court
dismissed the appellants request to set aside a decision where the judge had
become seized and similarly stated that [o]rders or directions by which a
judge seizes him or herself are inherently matters of trial management to which
this Court owes high deference: at para. 34.

[72]

These authorities all predate
N.R.G
. which examined the
issue in some detail.
In that case, the Court considered the
jurisdictional issue as to whether a judges decision to become seized is an
order for the purposes of s. 6 of the
Court of Appeal Act,
R.S.B.C.
1996, c. 77 and concluded that it is not: at para. 62. As the Court
explained:

[63]      The determination that the judge is seized of the
case is recited in two documents entitled Final Order, one from the trial and
the other from the review and reconsideration. Notwithstanding this title, we
respectfully suggest that
the determination is more in the nature of a
procedural direction or instruction that applications in the proceedings should
be set before himit does not address matters of substance between the parties
or issues raised in the pleadings. Such a direction is likely not an order or
decision that is within the jurisdiction given us by the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77: see
Cambie Surgeries Corporation v. British
Columbia (Attorney General)
, 2017 BCCA 287;
Director of Forfeiture v.
Lloydsmith
, 2014 BCCA 72. As we note in
Lloydsmith
, it happens that
matters of the trial courts management sometimes are included in documents
entitled Order that do not bear that character.

[Emphasis added.]

[73]

In addition to these comments, the Court noted that it would decline in
any event to interfere in the administration of the Supreme Court of British
Columbia in the manner sought and defer the question to that court: at
para. 64.

[74]

This does not leave parties without recourse. As explained in
N.R.G.,
also at para. 64,

it remains open to the parties to address
[their] complaint[s]either to the judge or the Chief Justice. Furthermore,
complaints about a judges decision to remain seized have often overlapped with
concerns which relate to the judges impartiality: see
Lee v. Lee,
[1990]
B.C.J. No. 2277 (C.A.)
; Strata Plan K855
at para. 34
;
and
N.R.G.
at paras. 5758. Where these rise to the level of a
reasonable apprehension of bias, the remedy will be the disqualification of the
judge seized:
Wewaykum Indian Band v. Canada,
2003 SCC 45 at para. 62;
and
N.R.G.
at paras. 6582.

[75]

We have reviewed the transcripts of the various substantive proceedings
before the judge. In light of:

·

certain of the interactions between the judge and the father;

·

the fact the 2017 Order was made without submissions from the
parties and the judge decided not to hear from the father after it was made,
with the resulting unfairness to which we have referred;

·

the April 2018 Order was made in the absence of the father; and

·

the effect of the 2017, April 2018 and 2019 Orders, being that
the father has had no in-person parenting time with A. from October 2017 to now
with the exception of the brief period of unsupervised parenting time in
December 2018 and supervised parenting time since September 2019,

we would respectfully suggest that consideration be given as
to whether any further application by the parties be passed to fresh eyes.

Disposition

[76]

We allow the appeal and set aside
the September 2019 Order with the exception of para. 4 as described above.

[77]

In light of our conclusion that
the 2017 Order was unfair to both parties, and that order formed the basis of
the April 2018 and 2019 Orders, we make no order as to costs in this Court or
in the court below.

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Goepel

The Honourable
Mr. Justice Abrioux