January 2, 2025
Expert Custody Report Misses the Mark and is Rejected by Trial Judge – Lawdiva’s Blog

Expert Custody Report Misses the Mark and is Rejected by Trial Judge – Lawdiva’s Blog

 In yet another highly acrimonious family law trial, C.K.C. v. P.R.C., 2024 BCSC 279, the court was asked to address multiple issues including parenting time, child support, the division of property and excluded property, all in the context of a highly unusual case, where the self-represented father announced to the court on day three of a seven-day trial that he was “done” and “resigning,” and would not be participating any further in the trial.

After being apprised by the judge of the likely consequences of his decision, the court adjourned the trial for the day and suggested that the respondent think about his position over the evening and make a final decision the next morning. The respondent absented himself from the remainder of the trial and the trial proceeded without him.

The claimant, 49 years old, had a bachelor of commerce and worked in the advertising industry in Vancouver. She met her husband, age 51, when she moved to London, Eng. to take up a new position in 2011. Prior to her departure to the United Kingdom, she purchased a condo in Vancouver.

Mr. C. was employed in the field of information technology and in April 2010 incorporated a company, CML, from which he conducted his consulting business.The parties began living together in December 2011 and married in January 2013.

In 2014 the parties purchased a pre-sale apartment in London, which they took possession of in April 2015. Their marriage was rocky from the outset, but Ms. C. was determined to make it work.

In June 2016 Ms. C. became pregnant and the parties agreed to move to British Columbia to start a new life and have a fresh start, moving in with Ms. C.’s parents in Langley and later moving into Ms. C.’s Vancouver condo. The apartment in London was rented out. Their baby was born in March 2017.

Mr. C. was able to obtain a good position in Vancouver, working for a major Canadian yoga and sportswear company, however, he became overwhelmed with his new position and raising a young baby. To alleviate his anxiety, he began smoking cannabis on a regular basis. Later, he was diagnosed with depression and quit his job.

In September 2017, the parties purchased a townhouse in Langley. Mr. C. had sold his company, CML, and contributed 35 per cent of the downpayment on their new home. In October 2018 he started a new position with a major digital interactive entertainment company, but that also proved to be challenging for him and relations between him and his wife were severely strained, became worse, and ultimately led to their separation in February 2022.

After multiple instances of instability, incivility, including badmouthing his wife to their daughter during periods when Mr. C. was drinking excessively and indulging in marijuana, Mr. C. left British Columbia, advising Ms. C. that he was returning to the United Kingdom on a one-way ticket, vowing not to return.

But a month later he did return, and on an ex parte basis, persuaded a Provincial Court judge to make a protection order that saw him return to the family home in the company of a police officer. Ms. C. immediately left the home with her daughter, moving in with her parents. Nine days later the order was set aside, and Ms. C. was awarded primary residence of their child and exclusive occupancy of the family home.

Mr. C. was ordered to pay $1,300 in child support and his parenting time was to be supervised for a maximum of six hours a week. Later, a s. 211 parenting report was ordered to be undertaken by a senior psychologist who submitted his report during the trial.

Mr. C.’s behaviour did not improve and there were multiple instances of inappropriate conduct, posting insults on social media, not paying child support, and attempts to alienate their daughter from her mother. In the two years after separation until the trial commenced, Mr. C. filed 14 applications and multiple appeals, most of which were frivolous and vexatious, leading to an order that further applications required leave of the court. His actions and words towards his wife also resulted in the trial judge finding that she was a victim of family violence.

In November 2023, Mr. C. brought an application, which was dismissed with special costs, where he alleged that he was bankrupt, homeless, eating at the food bank and had been alienated from his daughter by Ms. C.

The custody expert made recommendations in his 118-page parenting assessment, a report costing Ms. C. $35,000. His assessment of Ms. C. accorded with the trial judge’s observations: that she was optimistic, positive, dependable, responsible and a good parent. He described Mr. C. as “highly reactive to perceptions that others are undermining his concept of his personal rights and wellbeing and will respond in a punitive fashion challenging such individuals’ authority and rejecting their input. At points of stress, he may be overwhelmed and withdraw and disengage.”

Nevertheless, the expert found that Mr. C. was able to assume parenting responsibility and his interaction with his daughter was “highly positive and without concern,” but recommended drug and alcohol testing to confirm that “these were not matters of concern.” Further recommendations included joint custody and guardianship with primary residence with Ms.C., that a parenting co-ordinator be appointed, parallel parenting be put in place, and that Mr. C. receive co-parenting counselling and be entitled to unsupervised parenting for two hours everyTuesday and Thursday and five hours every Sunday.

This schedule was implemented by consent seven months prior to the commencement of the trial. The expert’s final recommendation was that Mr. C.’s parenting time be expanded to shared equal parenting time in March 2017, a month after the trial would conclude. 

The trial judge disagreed with the shared parenting recommendation and commented on Mr. C.’s “ongoing and unabashed determination to disparage Ms. C.” and his inability to put his daughter’s interests before his own. Mr. C. was also inconsistent with his court-ordered parenting.

As well, the court noted that Ms. C. continued to be the victim of his abusive and accusatory communications, directed at her and her counsel in the months leading up to the trial, concluding that the assumptions upon which the expert made his recommendations were flawed.

The court made parenting orders for Mr. C., conditional on his complying with specified conditions and conduct orders including:

a) No consumption of alcohol or illicit substances, including cannabis, within seven hours of his parenting time;

b) Consistency in exercising his parenting time;

c) Engaging a licensed mental health professional aimed at improving his parenting skills and providing a copy of the trial Reasons and the expert s. 211 report to the counsellor.

The trial judge’s parenting order consisted of a phased-in schedule, beginning with every second Saturday and Sunday from 9 a.m. to 7 p.m. and on 24 hours’ notice, one weekday after school to 6:30 p.m., as long as it did not interfere with the child’s regular activities.

Three months later, the schedule would be expanded to every other weekend from 9 a.m. Saturday to 7 p.m. Sunday and a weekday visit on 24 hours’ notice, with a further expanded schedule three months later of every second weekend from Friday after school to Sunday evening to include any Friday or Monday that was a statutory holiday or a Professional Day together with one week day after school with proper notice, if the child was available.

Special holidays were also addressed by the court, and Mr. C. was ordered to reimburse Ms. C. for 50 per cent of the cost of the expert report and pay costs to his wife.

**This article was first published in LAW360, a publication of LexisNexis Canada.

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