FRA - B.K.G. v. R.S.G. Date:, 2012 BCPC 405

Citation: FRA - B.K.G. v. R.S.G. Date: 20121102 2012 BCPC 0405 File No: 34381 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: B. K. G. APPLICANT AND: R. S. G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. D. GULBRANSEN

Counsel for the Applicant: P. Sahota Counsel for the Respondent: P. Virk Place of Hearing: Surrey , B.C. Date of Hearing: October 22, 2012 Date of Judgment: November 2, 2012 INTRODUCTION [ 1 ] B.K.G. applies to set aside an ex parte order that I made on January 17, 2012, granting interim custody and guardianship of her eight-year-old son, R., to his father R.S.G. She asserts that Mr. G. deceived the court by stating that she had gone with R. to India without his knowledge or permission. She says that in fact he gave permission to take their son with her to India for her sisters’ weddings. [ 2 ] Mr.

G. says that these claims are nonsense. He maintains that he was completely truthful with the court. He was genuinely worried about what had happened to his son. Mr. G. took possession of R. when Mrs. G. returned from India in March of 2012. R. remains in his custody. [ 3 ] This application proceeded on the basis of affidavits filed by both parties. No one was cross-examined. I am therefore not in a position to make definitive findings of fact, such as whether Mr. G. told the truth when he said that he did not give permission for his wife to travel with their son to India or whether Mrs.

G. told the truth when she said that Mr. G. did give permission. That issue can only be resolved at a full trial. [ 4 ] My task here is to assess all of the evidence, now that I have heard from both sides in this dispute. I can test the internal consistency of the affidavits provided by the parties, as well as compare the various assertions in them to known or uncontested facts. The question that I must decide is whether I would have made the ex parte order on January 17, 2012.

Relevant Legal Principles [ 5 ] Rule 20 (4) of the Provincial Court (Family) Rules provides a wide discretion for a judge to cancel or vary an ex parte order that he or she has made. The Rule states: (4) a judge may change or cancel an order made in the absence of a person, or made when the person failed to file a reply, if (

a) there is a good reason for changing or cancelling the order, and (

b) that person applies by notice of motion to a judge under Rule 12 within a reasonable time and attaches to the application an affidavit containing (

i) the reason the person did not file a reply or attend before the court when required, (ii) the reason for any delay. If there has been delay in filing, the application, and (iii) the facts that support the application. [ 6 ] A litigant who applies for an ex parte order must make full disclosure of all material facts. If the person seeking the order makes a material misrepresentation or does not disclose material evidence, the order must be set aside. Martinuik v Martinuik, [2001] B. C. J.

No. 58, at paragraph 8 . [ 7 ] It is very important that the courts require persons who make an ex parte application to a court to provide the court with a full and frank disclosure of the relevant facts. This issue has often been considered by the courts in applications to set aside injunctions. The same principles apply to orders made in Family Court. In Derochie v Park-Derochie, [2003] A. J.

No. 719 (Alberta Queen's Bench) , Mahoney J stated at paragraph 11: It is well known that when applying for an ex parte injunction (or on such short notice that the defendants have no time to respond), there is a solemn obligation on an applicant to see that full disclosure is made of all material facts. Failure to make full disclosure or misrepresenting material facts, when discovered, will be dealt with severely and as a punitive measure, most often results in the injunction being set aside on the motion to continue.

On the other hand, if punitive measures would result in an injustice to the applicant, and the nondisclosure is more technical than substantive, courts have been known to continue the order. [ 8 ] Evidence is material if it has some logical connection with the consequential “facts” which are at issue; it is evidence which is significant or influential. [ 9 ] Where evidence is provided only by affidavit, the court’s ability to evaluate such evidence is somewhat limited.

An affidavit by its very nature cannot be as detailed, complete, or nuanced as oral testimony. [ 10 ] The affidavit of the opposing party, which will typically contradict the essential assertions made in the other party’s affidavit, merely serves to highlight the issues which are in dispute. Without cross-examination, neither party is able to directly confront the other

to test the reliability and credibility of the evidence. [ 11 ] Nonetheless, within the limited scope of such a process, a court can still evaluate evidence presented in affidavits in the same way or manner that it evaluates the oral evidence of witnesses. That is, the court could pose such questions as: 1. Is the testimony consistent or has the witness given evidence that contradicts his or her other testimony? 2. Is the testimony consistent with accepted or uncontroverted facts? 3. Is the testimony consistent with common sense or is it merely implausible? 4.

Has the witness been candid in providing testimony? 5. Has the witness omitted to disclose important details in his or her testimony that the witness knew when the testimony was given? 6. If so, does the witness provide a credible explanation for such omissions? 7. Taking into account the facts which are admitted or are unchallenged, is the witness’s testimony on the contested issues more probably true than those of the opposing party? The Ex Parte Application [ 12 ] On January 17 2012, Mr. G. applied for an order granting him interim custody and guardianship of his son.

In support of that application, he filed an affidavit in which he sought to establish that his wife had gone to India with their son without his permission or knowledge and that it was unlikely that she would return. It was thus urgent that he obtain an order from the court. [ 13 ] The essential facts asserted in the affidavit were that: 1. The couple had separated on November 5, 2011. At that time, they resided in Abbotsford. Mr. G. left his wife and moved to Surrey. Mr. G. had regular access to his son every weekend. 2. During the separation, Mrs. G.

"Made threats to take R. to India so that I could not have access to him." He further states: "I always told her that she could not do this as R. was born in Canada and know [sic] nothing of India..." 3. Mrs. G. wanted the whole family to move back to India. Mr. G. refused to do so because he wanted to live in Canada. Her parents lived in Canada but had a house in India and "they spend half their time in India, half of their time in Canada." 4. Mrs. G. continued to "harass" him to let her take R. to India for her sisters’ wedding. Mr. G. told her that she could go on her own.

He would look after their son while she was in India. 5. After December 23, 2011, he was unable to contact Mrs. G. to see his son. He found out on January 12, 2012, that his wife had gone to India with their son. Relatives in India had told him that they saw Mrs. G. and R. at a market near where they lived. 6. He found out from his son's school that Mrs. G. had told the school that R. would be away from school from January 3, 2012, until March 19, 2012. 7. He believed that Mrs.

G. did not tell him about her intended trip to India with their son because she knew that he would not agree with their son being away for so long. He believed that Mrs. G. "has only done this to punish me in some way." 8. He believed that if she found out he was coming to India to get their son that she would leave and hide somewhere else in India. He further stated that he did not know if she truly had any plans of returning by March 19, 2012. He stated: "I do verily believe she will stay there as long as she can to keep R. away from me." [ 14 ] Mr.

G. did go to India in an attempt to get his son back, but was unsuccessful. Mrs. G. returned with R. on March 15, 2012. She refused to comply with the court order. Mr. G. successfully applied in court for an order directing police to apprehend his son. R. has been in his custody since then. B.K.G.'s Affidavit [ 15 ] On September 11 2012, Mrs. G. filed an application to set aside the ex parte order. In her affidavit filed in support of the application, Mrs. G. asserts that her husband obtained the order by fraud. She states that she told Mr. G. that she was going to India to attend the weddings of her two sisters.

She said that he agreed that their son could go with her. She suggests that he waited until she went to India and then carried out a plan to make false claims in court so that he could get interim custody of their son. [ 16 ] The affidavit addresses the specific points made by Mr. G. in his affidavit of January 17, 2012: [ 17 ] Mrs. G. says that her parents, who live in Canada, went to India in November 2011 to find suitable husbands for two of their daughters. She says that in November of 2011, before the separation, her parents told Mr. G. about their plans. She says that Mr.

G. told her and her parents that once the marriages had been arranged, he would allow Mrs. G. and their son to go to India to attend those weddings. He would join them later. [ 18 ] Until that trip in November 2011, her parents had not been to India in four years. She attached copies of their passport records to support the statement.

[ 19 ] Mrs. G. says that Mr. G. gave R.’s passport to her on November 18, 2011. She then booked return flights to India on November 21, 2011. She also took her son to the family doctor so that he could receive the various shots needed before he could travel to India. She also advised R.'s school that he would be away from the school from January 3 to March 9, 2012.

She said that by January she was living at her parents’ place in Mission and therefore decided not to send her son to a school in Abbotsford for the few days before they were scheduled to leave for India. [ 20 ] She denied that she had ever threatened to take R. to India so as to deprive Mr. G. of access to him. She points out that she cooperated in providing regular access by Mr. G. to his son. [ 21 ] She denied that she ever demanded that she and her husband and child move to India. She was committed to staying in Canada. She had no close relatives remaining in India.

Her parents and all her brothers and sisters also live in Canada. [ 22 ] She says it was in fact Mr. G. who insisted on returning to India several times. She says that they went to India from January 10, 2004, to March 12, 2004; from January 11, 2005, to April 2005; from December 3, 2006, to March 7, 2007. She says that on each occasion Mr. G. had “forced “her to accompany him to India. (The trip ending in March 2007 was her last visit to India until she went to her sisters’ weddings in January of 2012.) [ 23 ] She says that Mr.

G. also went to India in September 2008 with his mother and with their son - over her objections. R. did not return to Canada until September 2009, when he was scheduled to start kindergarten. Mr. G. visited India several times during that one year period. By Mrs. G.'s account of his travels during that time, Mr. G. spent at most about four months in Canada and the rest in India. [ 24 ] To support her claim that Mr. G. had planned all along to use her visit to India to his advantage, she referred to the fact that he filed a petition for divorce in India a few weeks after she arrived there.

She also pointed out that he booked his return flight to Canada for the same date that she and R. were scheduled to return – March 15, 2012. R.S.G.'s Second Affidavit (October Affidavit) [ 25 ] Mr. G. filed an affidavit in reply on October 22, 2012. He denies that Mrs. G. ever told him that she was going to India from January 11 to March 15. 2012. He also denies that either she or her parents told him anything specific about the plans for the marriages. He denies as well that he ever forced his wife to go to India. On each occasion, he says, she went willingly.

He denied that he had some sort of plan to use his wife’s trip to India to obtain custody of R. by fraudulent means. [ 26 ] Mr. G. admits that R. was in India between September 2008 and September 2009. He denies that Mrs. G. opposed their son being absent from Canada for that length of time. He says (paragraph 24): “ B.K.G. and I agreed that R. would travel to India with my mother while B.K.G. and I worked and earned money ." In paragraph 26 of his affidavit, Mr. G. explains his absences from Canada as follows: "...

I did stay in India for lengthy periods of time as B.K.G. and I were constantly arguing and it seemed that the marriage was on the rocks. " But, when he returned in September they did reconcile. [ 27 ] Mr. G. explained his statement in paragraph 6 of his first affidavit that Mrs. G. had threatened to take R. to India in order to deny access to Mr. G. He says (at paragraph 40): "B.K.G. would tell me that because I had taken R. to India previously for extended periods, she would do the same anytime she wanted to.

This is what I meant when I stated at paragraph 6 that she would take R. to India and I would not have access to him. She said since she did not have access for long periods of time, she would do the same to me." [ 28 ] Mr. G. also admits that he gave R.'s passport to Mrs. G. on November 18, 2011. He states that he gave it to her because she told him that she needed a passport to take their son on a shopping trip to the USA. He says that she did not tell him when they were going to the USA. He further states that the threats referred to in paragraph 6 of his affidavit occurred before Mrs.

G. and he agreed to an access

schedule for Mr. G. to see his son. [ 29 ] He further explained his comments in paragraph 4 of his first affidavit, that Mrs. G.'s parents spend half their time in India and half the time in Canada. He states (at paragraph 35): "I am aware that B.K.G.'s parents stayed in India for long periods of time. After 2007, I did not know anything about their trips as I did not reside with them save for an approximately two-week time period in 2009..." [ 30 ] Mr. G. also admits that he had some knowledge that Mrs. G. might be going to a wedding of one of her sisters.

When he gave her R.'s passport, he says that she asked him to sign an authorization to take R. to India. He said that he advised her that she should tell him what date she was travelling and put those dates into the travel authorization for their son. He says that she never told him what the travel dates would be and never provided him a travel authorization to sign. In particular he states (at paragraph 39): "I was only aware that B.K.G. would be going to India for two weeks for the marriage of one of her sisters, but no travel dates were ever provided to me by B.K.G. or any of her family members." [ 31 ] Mr.

G. further comments on his knowledge about any wedding in paragraph 46 of his second affidavit. He states: " what I was aware of that she was going to India for two weeks for the wedding of G.K.D. and that the wedding would take place in December 2011 or January 2012. That is all I knew and I was prepared to consent to such a trip for B.K.G. and R. to attend India for two weeks for the wedding of G.K.D. " [ 32 ] Mr. G. says that he went to India " within 15 days after January 17, 2012 " to try and enforce the order.

The police told him that they could not enforce the order because they did not have the jurisdiction to do so. He stayed in India to try and get access to his son. Another reason for staying was that he commenced divorce proceedings. The first appearance on that divorce action was March 7, 2012. He said that his wife did appear in court on March 11, 2012, and advised the court that she was going to Canada on March 15,

2012. He says that: "when I found out that B.K.G. was returning to Canada on March 15, 2012, I then booked my ticket to return to Canada from India on the same date." [ 33 ] In paragraph 43 of the October affidavit, Mr. G. explains why he did not seek a court order for access when he and his wife separated. He says: " I did not obtain an order for access because B.K.G. and I agreed on the access

schedule and the threats that had been made were made previously prior [sic] to the access being agreed to between B.K.G. and myself that I have access every Friday to Sunday." (This statement was made in answer to Mrs. G.'s statement in her affidavit that the very fact that she agreed to provide access to her son proved that she did not make any threats to take R. away from his father.) [ 34 ] Mr. G. makes no comment on the copy of the divorce petition attached to Mrs. G.'s affidavit.

The petition states that the grounds for the divorce are "on the basis of cruelty and desertion." The petition also states that Mr. G. resides within the jurisdiction of the court. It alleges misconduct by Mrs. G. towards Mr. G. but seemingly only when they were in India together during their visits, from 2004 to 2007. Regarding the ground of "desertion", the petition states: "That in the month of November 2011 the respondent has left the society of the petitioner without any rhyme and reason..." .

The only reference to alleged cruelty in Canada appears at paragraph 9 of the petition where it states : "that there is constant disturbance of mental peace of the petitioner without any rhyme or reason, which is also cruelty on the part of the respondent." Analysis [ 35 ] The onus is on Mrs. G. to establish that the ex parte order should be set aside. Thus, the question is whether the evidence establishes that Mr. G. misrepresented material evidence or failed to disclose material evidence in his affidavit of January 17, 2012.

Was the evidence contained in the affidavit reliable? [ 36 ] Both parties accuse the other of lying about various issues. (The nature of the evidence provided at this hearing does not permit me to make a determination of such accusations.) I will confine my analysis to the resolution of the question I have posed in the previous paragraph. [ 37 ] Mr. G.'s affidavit of October 22, 2012 (the October affidavit), contains significant contradictions when compared to the contents of his affidavit of January 17, 2012 (the January affidavit). An examination of the October affidavit also shows that Mr.

G. made several misrepresentations of material facts and omitted to disclose other material facts. [ 38 ] The thrust of Mr. G.'s January affidavit was that Mrs. G. had wanted for a long time to move to India. To illustrate that she had some support in India, Mr. G. stated that her parents lived half the time in Canada and half the time in India. When confronted by the evidence that Mrs. G. presented that her parents had not been to India since 2007 (until they went there in November of 2011), he merely replied that his knowledge of their travels predated 2007. He knew nothing of their travels after that date.

This admission makes the statement in paragraph 4 of his January affidavit almost meaningless. [ 39 ] There is no question that he asserted in the January affidavit that the parents’ curren t practice was to spend half their time in India and half their time in Canada. In fact, all that Mr. G. knew was that in 2007, or before, they spent significant periods of time in India. [ 40 ] Mrs. G. claims in her affidavit that she had no reason to want to live in India because her parents, her brothers and sisters now all lived in Canada. Mr. G. also knew that his wife's immediate family all lived in Canada.

That is apparent from his statement in paragraph 18 of the October affidavit where he denied his wife's assertion that he had forced her to go to India. He made the point that she had seven family members living in the Lower Mainland to whom she could have turned for help if he was truly forcing her to go somewhere. [ 41 ] Mr. G. said in paragraph 4 of the January affidavit that: "I wanted to live in Canada." – unlike his wife. He did not disclose that he regarded himself as a resident of India nor that Mrs.

G. had last been in India in 2007 (until she went there in January of 2012) nor that he had spent many months in India in 2008 and 2009. He may well have wanted to live in Canada, but the evidence shows that he had a much stronger connection to India than Mrs. G. [ 42 ] Mr. G.'s explanation of his assertion in paragraph 6 of the January affidavit that Mrs. G. would threaten to take R. to India makes that same assertion implausible. In paragraph 40 of the October affidavit, Mr. G. qualifies the nature of the alleged threat by saying that Mrs.

G. had essentially threatened to take R. to India for a long period of time just like he had done. [ 43 ] In paragraph 6 of the January affidavit he says the threats occurred " During our separation. " But, in paragraph 43 of the October affidavit, Mr. G. states that the threats occurred “prior to the access being agreed to." The separation occurred November 5, 2011. That means that Mrs. G. made the threat during a brief time period that occurred before Mr. G. started having access every weekend. There were no threats after that. [ 44 ] Mr.

G.'s allegation that his wife made these threats is made even less believable by another fact which he failed to disclose to the court – he gave R.’s passport to Mrs. G. on November 18, 2011. Why would he give the passport to a person who recently threatened to take his son to India so that he could not have access? As well, Mr. G. provides no explanation why he did not disclose this important fact to the court. [ 45 ] Thus, the allegation of the threat contained in the January affidavit, when examined in light of the explanations given in the October affidavit, is rendered almost meaningless. Mr.

G. qualifies it by saying his wife was basically threatening to take their son away for a period of time just like he did in the past. This may be merely a part of an ongoing quarrel about Mr. G.'s past conduct as opposed

to a serious threat. [ 46 ] Then, Mr. G. admits that he gave Mrs. G. the passport supposedly after she had made the threat. This is hardly credible. Next, Mr. G. indicates that the threat was made within some vague timeframe between the time they separated and the time of the agreed-upon access took place. Finally, he admits that there were no threats after they had agreed upon the access. This suggests that any alleged threat had not been persistent and had occurred in a relatively short time. That is, if any threat had been made at all. [ 47 ] In paragraph 7 of the January affidavit, Mr.

G. states that he told his wife that he would not agree to allow R. to go to India for her sisters’ wedding. But in paragraphs 46, 49 and 51 of the October affidavit, Mr. G. states that he was willing to consent to R. going to India with Mrs. G. for two weeks to attend her sisters’ wedding. Both statements cannot be true. Either Mr. G. told his wife that he would agree with R. going to India or he did not. Mr. G. did not offer any explanation for making this apparently false statement to the court. [ 48 ] As well, assuming that Mr.

G.’s statements in the October affidavit are true, they would render his assertion that any threats were made in paragraph 6 of the January affidavit even less credible. Why would he give his son’s passport to his wife who had recently threatened to take his son away to India and then also give permission for her to go to India with that child? [ 49 ] The mere fact that Mr. G. sued for divorce in India is not relevant to these proceedings. The parties were married in India. Accordingly, an Indian court should have jurisdiction to dissolve the marriage.

For the purposes of the application before this court, the question is whether Mr. G. was candid in making his applications to this court and to the court in India. Was he consistent in the information he provided to each court? [ 50 ] Mr. G. alleged in the divorce petition that Mrs. G. deserted him and refused to reconcile. In the January affidavit, he describes only a separation, in which both parties moved to separate residences – not a desertion by anyone. The vague allegation of mental cruelty made against Mrs. G. in the divorce petition, suggests ongoing misconduct on her part. Mr.

G. mentioned no such serious misconduct in the January affidavit. If Mrs. G. was continuing to do something so bad as to severely disturb Mr. G.'s "mental peace", it would probably be relevant to whether she should have custody of R. But he made no mention of it. [ 51 ] In the January affidavit at paragraph 6, Mr. G. makes a statement which may not have been intended to deceive the court, and was perhaps just a "rhetorical flourish". It concerns me, in any event, because it illustrates that Mr. G. is often quite careless with the assertions he makes.

He seems to make strong or definite assertions only to significantly qualify them when challenged or when it serves his immediate interest. [ 52 ] In that paragraph, Mr. G. says that he told his wife that she could not take R. to India because "... as R. was born in Canada and know [sic] nothing of India." That statement was not quite true. R. had spent a whole year in India, away from his mother, leaving soon after his 4 th birthday and returning when he was 5. Therefore, it is misleading to say that he knew nothing of India.

The real point he wanted to make was that it would not be beneficial for his son to be taken away from him, wherever he was taken. [ 53 ] There are similar examples in the October affidavit. In paragraph 24 of that affidavit, Mr. G. explains why R. was left in India with Mr. G.'s mother. He said: "in the circumstances, R. was not taken to India at the objection of B.K.G.

B.K.G. and I agreed that R. would travel to India with my mother while B.K.G. and I worked and earned money." [ 54 ] In paragraph 25, he agrees that he stayed in India for lengthy periods of time when R. was there, because: “B.K.G. and I were constantly arguing and it seemed our marriage was on the rocks." That is, for much of that time he was not working and earning money, only his wife was. He was spending time in India with his mother and R. Conclusion [ 55 ] Mr. G. misrepresented material evidence by stating that he told his wife that he would not consent to R. going to India for the wedding of one sister.

He admitted that he actually had given his consent to a two-week visit to India. He misrepresented material evidence when he asserted (or implied) that Mrs. G.'s parents currently spent half of their time in Canada and half of the time in India. He misrepresented the extent and significance of the alleged threat to take R. to India. Mr. G. admitted that the alleged threat occurred only after the separation and before he obtained access to his son. [ 56 ] He failed to disclose material evidence when he did not tell the court that he had given R.'s passport to Mrs. G.

He also failed to disclose material evidence that Mrs. G.'s immediate family lived in Canada, not India, and that (until January 2012) she had not been to India since 2007. [ 57 ] Mr. G. made a careless misrepresentation that R. knew nothing of India, when he knew that R. had spent a year in India three years earlier. Also, Mr. G. seems to have carelessly described the separation with Mrs. G. in his divorce petition. In that petition, he alleges that she deserted him.

Yet, in his January affidavit what he describes is a simple separation of a couple which in no way can be construed as a desertion. [ 58 ] Even accepting Mr. G.'s denial that he knew nothing about the plan for two weddings, he did know that one of Mrs. G. sisters was being married in India – possibly in the New Year. Thus, the most likely reason for Mrs. G. going to India was to attend a wedding. She had no close relatives then living in India. It was unlikely that she would choose not to return to Canada. The fact that Mr. G. gave his son’s passport to Mrs.

G., combined with his convoluted explanations about the nature of the threats and as well as how often and when they were made, causes me to conclude that it is improbable that Mrs. G. made any such threat. [ 59 ] In addition, Mr. G. has shown himself to be someone who is careless, even reckless, in making assertions about Mrs. G., or about his case. [ 60 ] The credibility of Mrs. G.'s evidence has not been effectively challenged. Of course, her version of events is quite simple. She decided to go to India to her sisters’ weddings.

She obtained her son’s passport from her husband and then booked a flight to India,

including a return flight. She advised the school that her son would be away for an extended period of time and obtained the appropriate shots for her son to travel to India. She never had any intention of remaining in India beyond her planned dates. She maintains that she had Mr. G.’s permission to take her son to India for the period of time she was there. It is only that last point that is really at issue. [ 61 ] I cannot determine with certainty, as I said above, whether Mrs. G. told her husband about the planned trip or not. However, based on all the evidence, it appears more likely that she did.

I have serious reservations about the evidence given by Mr. G., but I am not making any finding that he has lied to this court. In any event, I am able to deal with this particular application to set aside my January 17 order without having to make any such finding. [ 62 ] As I have indicated in my analysis of Mr. G.'s evidence above, the affidavit, which he filed on January 17, 2012, is almost completely unreliable. I conclude that I would not have granted the ex parte order on January 17, 2012, had the evidence been frankly and fully disclosed to me.

Thus, there is a good reason to set the order aside. [ 63 ] Did Mrs. G. apply within a reasonable time to set the order aside? Mrs. G. knew about the order before she returned to Canada because she was served with a copy of it in India. She arrived in Canada in the middle of March 2012 but did not apply to set the order aside until September 2012. She was apparently represented by counsel, but that is not clear. [ 64 ] In any event, once she retained Mr. Sahota, he almost immediately made application to set the order aside. In these circumstances, that is what I would expect any competent lawyer to do.

While it would have been better if Mrs. G. had applied earlier, the delay in making application was a matter of months. I infer that Mrs. G. was either confused or did not get adequate legal advice or both. In the circumstances of this case, I find that Mrs. G. applied within a reasonable time to set aside the order. [ 65 ] I emphasize that I do not find that Mr. G. lied to this court. In family matters, litigants often make extreme claims which arise from the emotion that accompanies every marital breakdown.

It is often the case that they make claims or assertions that they want to be true or wish were true without having evidence to support them. That is perhaps what happened with Mr. G. Nonetheless, courts have to be vigilant in making sure that persons who apply for ex parte orders make proper disclosure of all relevant evidence. When that does not happen, injustice can occur. Thus, when an order has been obtained in the absence of the other party by misrepresentation or nondisclosure of material evidence or by making reckless assertions against the other party, courts must not let such orders stand.

I direct therefore that the order made on January 17, 2012, be set aside in its entirety. [ 66 ] In granting Mrs. G.'s application, I do not make any finding that her decision to take her son away from Canada for 2 1/2 half months was in the child's best interests. That is something Mrs. G. will have to explain as this litigation proceeds. One needs only read the letter that she received from the school confirming her son's absence, to see that school authorities believed that such a long absence could have a very negative effect on his education.

However, the letter also is clearly a form letter which leads me to conclude that this is not the first time that a parent has taken a child from that school for an extended absence. The Honourable Judge P. D. Gulbransen Provincial Court of British Columbia