T.B. v. B.B. and V.C. Date:, 2012 BCPC 463

Citation: T.B. v. B.B. and V.C. Date: 20121109 2012 BCPC 0463 File No: F28624 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: T.B. APPLICANT AND: B.B. RESPONDENT File No: F30854 Registry: Surrey T.B. APPLICANT AND: V.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.N. HAMILTON Appearing for T.B. : In Person Counsel for B.B. : R. Craig Campbell Counsel for V.C. : M. Metzner

Place of Hearing: Surrey , B.C. Dates of Hearing: October 31 and November 1, 2012 Date of Judgment: November 9, 2012 INTRODUCTION [ 1 ] On November 1, 2012 I gave brief oral reasons for judgment dismissing the applications before me in this matter. At that time I advised that I would deliver more comprehensive written reasons for judgment. These are those reasons. [ 2 ] T.B. is the mother of three girls, M.B., born (d.o.b.) (“M.”), B.B., born (d.o.b.) (“B.”), and S.B.C., born (d.o.b.) (“S.”). B.B., the Respondent in action no. F28624, is the father of M. and B. M. is seven years old and B. is six years old.

V.C., the Respondent in action no. F30854, is the father of S. S. is four years old. [ 3 ] Both actions are scheduled for a ten-day trial commencing January 14, 2013. The trial is to determine final orders for custody, guardianship, access, and maintenance with respect to the three girls. I am the assigned trial judge. [ 4 ] B.B. and V.C. each filed an application seeking slightly different relief, but both seek the same result – they wish to avoid the ten-day trial. [ 5 ] B.B. currently has an ex parte order dated October 29, 2010 for sole custody and guardianship of M. and B.

T.B. has an order for weekly supervised access to M. and B. B.B. applies for an order that I summarily dismiss T.B.’s claims for joint custody, joint guardianship and equal parenting time of M. and B. and further limiting T.B.’s access to the children. [ 6 ] The basis for B.B.’s application is the fact that T.B. has seen the children on one occasion since June, 2012, and that there is no prospect that she will succeed at trial. He seeks a further reduction in T.B.’s access to the children because she is not exercising the access she is entitled to under the court orders.

More specifically, on January 6, 2012 T.B. and B.B. entered into a consent order that specified T.B.’s access with M. and B. as follows: i. Telephone access on Mondays and Thursdays; ii. Skype access on Wednesdays; and iii. In person access on Sundays from 9:00am to 6:00 pm which access is to be supervised by members of T.B.’s family. [ 7 ] In addition, B.B. says that a ten-day trial would be financially devastating to him and his family. He would have to spend resources on the trial which could be used to benefit the children.

Given the remote prospect that T.B. will succeed at trial, he says I should dismiss T.B.’s applications, grant him a final order for sole custody and guardianship of M. and B., and maintain the supervised access but reduce the amount of T.B.’s access to the children.

He also seeks an order that I increase the child support payable by T.B. given that in September, 2012 she started a new job earning $36,000.00 per year. [ 8 ] In the alternative, B.B. seeks an order adjourning the trial generally and if T.B. begins to exercise her access to the children that has been ordered, and if she maintains a regular and consistent access

schedule over a sustained period of time, then, and only then, would it be appropriate to set this matter for trial. [ 9 ] V.C. seeks an order adjourning the trial generally (essentially the alternative proposal sought by B.B.). V.C. adopts the argument advanced by B.B. regarding the remote prospect that T.B. will succeed in her application for joint custody and guardianship, and equal parenting time of S. He also says that he will likely lose his job if he must take two and a half weeks off from work to attend the trial.

He wants the trial adjourned and he says that if T.B. is able to demonstrate a commitment to S. by exercising her court ordered access on a consistent, regular, and reliable basis over a period of six months, then it may not be necessary to set this matter for trial – he might consent to lift the supervision requirement on T.B.’s access. [ 10 ] V.C. also argues that because T.B. has failed to comply with certain court orders, I should not grant her a right of audience at the upcoming trial and I should dismiss her claims for joint custody, guardianship and equal parenting time.

He says that T.B. is not exercising her court ordered access and thus is in breach of that order. V.C. argues that T.B. did not deliver a fully completed financial statement as ordered and is therefore in breach of that order. He says that T.B. has not paid all the child maintenance she has been ordered to pay and is therefore in breach of that order. Lastly, he argues that T.B. has not produced phone records that were ordered to be produced on two occasions and is thus in breach of both of those orders. [ 11 ] T.B. opposes the applications brought by B.B. and V.C.

She says that she has been to court on many occasions, filed numerous applications, and has not been heard. She says that B.B. and V.C. have characterized her as a threat to her children, that they have erected numerous barriers that prevent her from seeing her children, and that she has been waiting for a very long time to have her case heard. T.B. believes that she can establish that she does not pose a threat to her children.

T.B. says it would be unjust to deprive her of her “day in court.” [ 12 ] At the conclusion of the hearing on November 1, 2012 I dismissed the applications brought by B.B. and V.C. and ordered that the trial would proceed as scheduled on January 14, 2013. I also made certain orders for pre-trial exchange of documents and witness lists. I indicated that given the evidence I heard during the applications, I did not think the trial would require ten more days of evidence and encouraged the parties to consider a revised time estimate for this trial.

I indicated that we would likely reduce the time set aside for the trial at the pre-trial conference scheduled for December 13, 2012.

[ 13 ] Given that I am to hear this trial in January, 2013 I will comment on the evidence adduced in these applications only to the extent necessary to explain my decision. BACKGROUND A. T.B. v. B.B. [ 14 ] I was not told much about the relationship between T.B. and B.B. Karen Fenton, a family justice counsellor prepared a

section 15 report dated June 20, 2012 which contains some background information regarding the relationship between T.B. and B.B. as well as Ms. Fenton’s recommendations concerning the custody and guardianship of, and access to, M. and B. Ms. Fenton prepared a

section 15 report in both actions so some of the background information included here is taken from those two reports. [ 15 ] The parties were in a dating relationship for less than one year and were married on October 10, 2003. M. was born (d.o.b.) and B. was born (d.o.b.). The parties separated in October, 2006 and M. and B. remained living with T.B. In November, 2007 T.B. and B.B. agreed to a shared parenting arrangement where they had the children in their care on a four day rotating schedule. [ 16 ] In about May, 2007, T.B. commenced a relationship with V.C., and on (d.o.b.) S. was born.

T.B. and V.C. separated in August, 2009. S. remained living with T.B. [ 17 ] In October, 2009 T.B. commenced a relationship with J.M. who was excessively violent with T.B. She feared for her life and the safety of her children. The children witnessed their mother being the victim of extreme physical violence. [ 18 ] In April, 2010 T.B. asked B.B. to assume responsibility for caring for M. and B. given the violence in the relationship with J.M.

M. and B. went to live with their father and on April 23, 2010 B.B. obtained a court order that he provide the primary residence for the children and permitting T.B. to have access with the children as agreed upon between the parties. [ 19 ] I am not certain of the date, but at some point in 2010 T.B. followed J.M. to Calgary in pursuit of her relationship with him. Apparently J.M. convinced T.B. that he had changed so she visited him in Calgary.

Unfortunately, J.M. had not changed and within two weeks T.B. had terminated their relationship. [ 20 ] T.B. testified that while she was in Calgary, B.B. called to tell her that the police were investigating her for her alleged role in a murder. The allegation of this phone call was not put to B.B. in his evidence so I do not have his evidence on this point, but I mention it here because T.B. said that she remained in Calgary for many months out of a fear over this alleged murder investigation.

T.B. was absent from her children’s lives for approximately eighteen months between 2010 and 2011. [ 21 ] On October 29, 2010 B.B. appeared in court in the absence of T.B. and obtained an ex parte order giving him sole custody and guardianship of M. and B. The order includes restraining orders against T.B. and a term permitting T.B. to apply to set aside the order on notice to B.B. [ 22 ] On November 9, 2010 T.B. filed an application to set aside the ex parte order. On February 23, 2011 T.B. filed a Notice of Motion seeking to cancel the restraining order and to obtain an order for access to M. and B.

On April 7, 2011 T.B. filed an application to cancel the restraining order and for access with the girls. On August 12, 2011 T.B. filed a Notice of Motion seeking to vary the ex parte order of October 29, 2010 and seeking orders for interim custody and guardianship of M. and B. None of T.B.’s applications or Notices of Motion went to hearing. It is not clear to me why. At times T.B. had the assistance of counsel, at other times she represented herself. [ 23 ] On August 18, 2011 Judge Arthur-Leung ordered a

section 15 report in this case. On October 19, 2011 Judge Arthur-Leung ordered a

section 15 report in the T.B. v . V.C. matter. [ 24 ] On May 1, 2012 the parties appeared before me for a pre-trial conference in advance of a four-day trial scheduled for June, 2012. The V.C. matter was also before me on May 1, 2012 for a pre-trial conference because that case was scheduled for a four day trial during the week immediately after the trial in the B.B. case. [ 25 ] At the pre-trial conferences, counsel for B.B. and V.C. applied to adjourn the two trials because the

section 15 reports were not available and would not be available in time for the trials. [ 26 ] I adjourned the trials and ordered that the two cases would be heard and determined at the same time because the evidence and issues in the two cases were, for the most part, the same. The two cases were then scheduled for a ten-day trial in January, 2013. B. T.B. v.

V.C. [ 27 ] I have briefly set out some of the background of the relationship between T.B. and V.C. above. [ 28 ] On September 11, 2009 the parties attended a hearing before Judge McDonald at which he ordered the parties to share joint custody and guardianship of S., he ordered that S.’s primary residence would be with T.B., and he ordered V.C. to have liberal and generous access with S. [ 29 ] T.B. asked V.C. to assume caring for S. in April, 2010, again because of her violent relationship with J.M. [ 30 ] On April 27, 2010 T.B. and V.C. entered into a consent order making V.C.’s home S.’s primary residence and permitting T.B. to have access with S. as agreed between the parties.

T.B.’s access could be supervised at V.C.’s discretion. [ 31 ] On May 18, 2010 Judge Hicks ordered that T.B. was to have supervised access with S. [ 32 ] On October 29, 2010 V.C. appeared in court and obtained a nearly identical ex parte order as B.B.’s ex parte order of the same

date. The order gave V.C. sole custody and guardianship of S., and restrained T.B. from having contact with V.C. and S. Again, there was a term permitting T.B. to apply to set aside the ex parte order on notice to V.C. [ 33 ] On January 26, 2011 T.B. filed a Notice of Motion seeking to set aside the restraining order and for access with S. On April 7, 2011 T.B. applied to set aside the restraining order and sought access with S. On August 12, 2011 T.B. filed a Notice of Motion seeking to vacate or vary the October 29, 2010 ex parte order and sought orders for interim custody, guardianship, and access with S.

As in the B.B. case, none of T.B.’s applications or motions was set for hearing. [ 34 ] On October 19, 2011 Judge Arthur-Leung ordered, by consent, that T.B. could have supervised access with S. as well as telephone access. The access visits were to be supervised by extended family members of both T.B. and V.C. Judge Arthur-Leung also ordered the

section 15 report be prepared and ordered T.B. to produce certain telephone records. Lastly, all the restraining orders set out in the October 29, 2010 ex parte order were vacated. [ 35 ] On February 14, 2012 the parties appeared again before Judge Arthur-Leung for an access hearing. Counsel for V.C. pointed out that at this hearing Judge Arthur-Leung did not set aside or vary her ex parte order.

However, that is because T.B. had not set her applications for hearing on that date. [ 36 ] At the conclusion of the February 14, 2012 access hearing, Judge Arthur-Leung ordered that T.B. could have telephone access with S. on Wednesdays, Skype access on Tuesdays, and supervised access with S. for five hours each week with the visits supervised by a professional access supervision agency. Judge Arthur-Leung also ordered both parties to produce a fully completed financial statement on or before April 30, 2012.

In the event either party failed to file their financial statement, Judge Arthur-Leung ordered that there would be a $500.00 penalty assessed against the delinquent party. Lastly, Judge Arthur-Leung again ordered that T.B. produce certain telephone records. [ 37 ] T.B. failed to file her financial statement on time. [ 38 ] As with the B.B. matter, the parties appeared before me on May 1, 2012 for their pre-trial conference.

I have set out above the orders I made at the pre-trial conference; however, in addition to those orders, I ordered T.B. to pay to V.C. the $500.00 penalty for failing to complete and file her financial statement on time, and I ordered her to produce her financial statement on or before May 15, 2012. T.B. complied with my order. DISCUSSION A. M. and B. [ 39 ] I set out at the beginning of these reasons the various orders sought by B.B. and V.C.

With respect to B.B.’s application that I summarily dismiss T.B.’s claims for joint custody, guardianship, and equal parenting time, I have serious reservations whether such relief is available under the Provincial Court (Family) Rules . Counsel for B.B. rightly noted that Rule 1(1) says the following: Purpose

(1) The purpose of these rules is to allow people to obtain just, speedy, inexpensive and simple resolution of matters arising under the Family Relations Act and certain matters under the Family Maintenance Enforcement Act. [ 40 ] B.B.’s counsel submits that the ten-day trial currently scheduled for these two cases will be prohibitively expensive for his client who runs his own business. Taking two and a half weeks away from his business to attend this trial could have a detrimental effect on his business.

He says that the money spent on this trial could be put to better use such as savings for university for M. and B. [ 41 ] Counsel for B.B. says that in light of the fact that T.B. has only had one supervised access visit with M. and B. since June, 2012 she stands no chance of succeeding in obtaining orders for joint custody, guardianship, and equal parenting time of the girls.

He says that T.B.’s decision to stay in the violent relationship with J.M. and to expose the children to that violence demonstrates her poor judgment such that it would not be appropriate for her to have joint custody and guardianship of the girls. [ 42 ] He also points to an allegation that T.B. is involved in the adult entertainment business and that she posted photographs of all three girls on her web-site.

In August, 2012 I ordered T.B. to remove the photos of the girls from her website. [ 43 ] In short, counsel for B.B. says that with the outcome of the trial being essentially a foregone conclusion, it would be contrary to Rule 1(1) for me to permit the trial to proceed, and that since the outcome is so clear I should grant B.B. final orders for sole custody and guardianship of M. and B.

He says further that given that T.B. is not exercising the access she is entitled to, I should order a reduction in her access. [ 44 ] In response, T.B. says that she has filed numerous applications and notices of motion seeking to re-establish herself in the lives of M. and B. She says that each time she has come to court she has not been heard. She says she has tried to point out things that B.B. has done that have led to very negative consequences for her, but nobody will listen.

She says that at the upcoming trial she will have the opportunity to tell her side of what has happened and demonstrate that she was, and is, a good mother. [ 45 ] As I indicated earlier, I am not sure I have the authority to summarily dismiss T.B.’s claims for joint custody, guardianship and equal parenting time of M. and B. I have reviewed Rule 6(3)(j), and (k), Rule 8(4)(

j) and Rule 20(11)(c), but I am not satisfied any of those rules contemplate the process that occurred during this hearing. I heard from the three parties and they were all cross-examined. I did not hear evidence from Karen Fenton. T.B. does not accept Ms. Fenton’s conclusions set out in the

section 15 reports and wants the

opportunity to cross-examine Ms. Fenton. I did not hear from the partners of any of the parties although each is in a committed relationship with people who play, or will play, a significant role in the children’s lives. I received some documents into evidence, but I did not see any of the access supervision reports which T.B. says report positively on her visits with the children.

Neither B.B. nor V.C. disputed T.B.’s characterization that the reports are positive. [ 46 ] B.B. wanted to conduct a mini trial, in the fashion I have set out above, and have me dispose of T.B.’s claims, on their merits. [ 47 ] As I have indicated, I do not believe I have the jurisdiction to do so, but in light of my decision to dismiss B.B.’s application I do not need to decide the point. [ 48 ] With respect to B.B.’s position that T.B.’s claims are bound to fail, I adopt here what I said in my oral reasons for judgment.

Based upon the evidence I have heard, I am not satisfied that T.B.’s claims are bound to fail. It may be that upon the conclusion of the trial I decline to grant T.B. joint custody or joint guardianship of M. and B., but I cannot say, right now, that that is going to happen. In addition to seeking orders for joint custody and guardianship, T.B. is asking for an order that the children spend 50% of their time in her home. I told T.B. that I did not believe she would succeed on that claim, given her limited involvement in the girls’ lives since April, 2010.

But again, I am unable right now to make a final determination on that point. [ 49 ] While T.B. has demonstrated poor judgment, on occasion, when it comes to her children, I am not satisfied that I can conclude, on the evidence I have heard, that she lacks the capacity to fulfil the role of a joint custodial parent or to share joint guardianship of M. and B. with B.B. I simply do not yet know because I need to hear further evidence from both of the parties, their partners, and Ms. Fenton. [ 50 ] T.B. has faced some impediments in her attempts to reinsert herself into the lives of M. and B.

Following the ex parte hearing on October 29, 2010, B.B. arranged for the ex parte order to be delivered to T.B. Thirty minutes after she received the order, it is alleged that she called B.B., which would have been a violation of the restraining order set out in the ex parte order. B.B. reported the alleged breach of the restraining order to the police and T.B. was arrested for a breach of the restraining order. The case went to trial, and the charges were dismissed. [ 51 ] On another occasion, T.B. was driving to a store to buy dog food and as she drove through the parking lot of the store she saw B.B.

T.B. did not stop her vehicle but continued to drive through the parking lot and left. B.B. called the police and T.B. was arrested for breaching the restraining order and was held in custody for a few hours. [ 52 ] On April 25, 2011 B.B. wrote an email which on its face appears to be an email from T.B. to B.B. In that email, B.B. wrote what purports to be a death threat from T.B. The email also includes statements that T.B. is no longer going to pursue custody and guardianship of, and access with, M. and B.

B.B. then took the email to the police and T.B. was arrested again for breaching the restraining order and was held in custody for a number of hours. T.B. was eventually able to establish that she did not write the email, and B.B. was charged with mischief. The Crown eventually stayed those charges. When I asked B.B. why he wrote the email, he said that he wrote it because he wanted to prevent T.B. from coming back into the lives of M. and B. [ 53 ] As I indicated earlier, while in Calgary T.B. alleges that B.B. called to tell her that she was under investigation by the police for murder.

As a result, T.B. remained in Calgary for some time as she was afraid to return to British Columbia. Ultimately she was out of the girls’ lives for eighteen months. [ 54 ] Lastly, B.B. alleges that T.B. posted photographs of all three daughters on her website for her adult entertainment business. T.B. denies she posted the photographs on her website. Rather, she says that she posted the photographs on her private Facebook page which was only accessible with a password. She cannot explain how B.B. would have gained access to her private Facebook page.

She says, however, that this is another example of how B.B. has presented information inaccurately which is designed to portray T.B. as a threat to M. and B. [ 55 ] I have reviewed these allegations only in an effort to show that a fuller hearing is needed to enable me to sort out who to believe and what orders are consistent with the best interests of M. and B. I have not reached any conclusions, and at this time will make no findings with respect to these matters.

I am simply trying to show that the question of custody and guardianship of M. and B. is a very open question. [ 56 ] Accordingly, I have decided that I will have to hear further evidence from the parties and other witnesses before I am able to determine what orders to make with respect to the custody and guardianship of, and access to, M. and B. In the result I dismiss B.B.’s application for orders dismissing T.B.’s claims. I also dismiss B.B.’s application that I reduce T.B.’s access to M. and B. B. S. [ 57 ] With respect to S., I note that V.C. adopted many of the arguments advanced by B.B.

I will not repeat those here. [ 58 ] As I noted earlier in these reasons, V.C. seeks an adjournment of the trial and argues that T.B. should demonstrate over a period of six months that she can reliably attend at all of her court ordered access visits with S. He says that if she does so and the access supervision reports are positive, then he would likely agree to an order lifting the requirement that T.B.’s visits be supervised. [ 59 ] The obvious difficulty with V.C.’s position is that T.B. is not just asking that her access with S. become unsupervised.

T.B. has applied for orders for joint custody, guardianship, and equal parenting time of S. So, delaying this trial for six months or more to determine if V.C. will consent to unsupervised access would deprive T.B. of her opportunity to pursue her claims for joint custody, guardianship, and equal parenting time at trial. [ 60 ] V.C. claims that if he must attend a ten-day trial over a period of two and a half weeks in January, 2013 he is in peril of losing his job. The detrimental effect on S. if this happens is obvious.

I point out that all of the parties to these two actions face financial hardship should the trial last a further ten days. But as I indicated earlier I do not believe ten days of trial will be necessary given the

evidence I have already heard over the two days of these applications. Also, financial hardship is a fact of litigation faced by all litigants before our courts. Where the volume of evidence or the issues are complex the trial will take time. The more time it takes to hear the case the greater the financial hardship. But I do not consider it fair or just to deprive a litigant of the opportunity to have their claims tried in court based upon the opposing party’s complaint of financial hardship to attend the trial.

Also, I do not believe it is in the children’s best interests to deprive T.B. of the opportunity to advance claims for joint custody and guardianship, and equal parenting time of the girls. [ 61 ] Lastly, V.C. argues that I should not grant T.B. a right of audience at the upcoming trial because she has failed to obey certain court orders. In my view, only one of V.C.’s arguments has any merit with respect to the alleged breaches of court orders. [ 62 ] First, V.C. argues that T.B. is in breach of court orders because she is not exercising her court ordered access to S.

He says therefore I should not hear T.B.’s claims for joint custody, guardianship, and equal parenting time in January. This argument has no merit. In fact in my view I need to hear from T.B. so I can try and determine if she is not exercising her court ordered access because she is not interested in seeing S., or if there is some other reason for her failure to exercise access.

It may be the case that changes need to be made to the access order to enable T.B. to exercise her access which would be in S.’s best interests. [ 63 ] Second, V.C. argues that T.B. failed to properly complete her financial statement contrary to a court order that she do so. He says that in the result I should not hear T.B.’s claims for joint custody, guardianship, and equal parenting time of S. Again, this argument has no merit.

I point out that the specific shortcomings in T.B.’s financial statement were not brought to my attention, nor was T.B. asked questions related to her failure to properly complete her financial statement. It is true that since T.B. filed her financial statement in May, 2012 she has obtained a new job. She started her new job in September, 2012.

I did not understand that the alleged shortcoming in T.B.’s financial statement was her failure to file an updated financial statement to reflect her new job. [ 64 ] T.B. testified that she is now earning $36,000.00 per year which is about double her annual income set out in her financial statement filed in May, 2012. It does not appear to me that T.B. is attempting to hide this additional income to avoid her child support obligations. V.C. and B.B. asked me at the conclusion of these hearings to vary the child maintenance order to reflect T.B.’s greater income.

I declined to do so on the basis that T.B. was given no notice of that application. However, I ordered that V.C. and B.B. can apply at the trial in January, 2013 to vary the child maintenance payable by T.B. based upon her greater income and seek to have the variation apply retroactively to November 1, 2012. [ 65 ] Third, V.C. argues that T.B. has not paid any of the

section 7 expenses for S. as ordered. He says that again she is in breach of a court order and as such I should not hear T.B.’s custody, guardianship, and parenting time claims in January, 2013. Again, this argument has no merit. While it is true that T.B. has not paid her proportionate share of the

section 7 expenses, she has been asked by V.C. to pay her proportionate share of expenses for swimming and dancing lessons, and it has not yet been determined that those expenses qualify as

section 7 expenses. [ 66 ] V.C. says he incurs child care expenses for S. V.C. did not tender into evidence any child care invoices. I understand that V.C.’s mother provides child care for S. in exchange for free rent in a suite in V.C.’s home. While I ordered in August, 2012 that T.B. pay 17% as her proportionate share of the

section 7 expenses for S. and that child care qualified as a

section 7 expense, it is not clear to me how V.C. has calculated the monthly cost of the child care provided by his mother. Is the child care expense the value of the free rent V.C. provides to his mother, or is the child care expense the market cost of child care for one child?

Since I have not seen any invoices for child care I do not know the monthly cost of child care for S. [ 67 ] I note that, once I have determined what the child care costs are, T.B. will be obliged to pay V.C. her 17% of those expenses dating back to August, 2012, and possibly further if V.C. succeeds in an application that he be paid those child care expenses back to April, 2010.

While our courts do not condone parents who fail to meet their financial obligations to their children, I am not satisfied, on the facts of this case, that depriving T.B. of the trial of her claims for custody, guardianship, and equal parenting time is the correct remedy for her failure to pay her proportionate share of

section 7 expenses. I say that because the

section 7 expenses have not yet been determined to include swimming and dancing lessons, and while the

section 7 expenses include child care, I have not determined that the method of calculating the child care expenses accurately reflects the cost of child care for S. [ 68 ] Lastly, V.C. argues that T.B. has been ordered on two separate occasions to produce her telephone records for both her land lines and her cellular telephones. My understanding of the purpose in ordering the production of those telephone records is to determine the frequency of T.B.’s telephone calls to V.C. requesting access visits with S.

I gather that T.B. says she called frequently and V.C. says she did not. [ 69 ] Regardless, T.B. has failed to produce her telephone records as ordered. She says she has produced her cellular telephone records, but she is unable to produce her land line telephone records. T.B. has a confusing story about having obtained possession of all of her telephone records but that those records were stolen when her vehicle was broken into.

She says that she tried to get another copy of her records and was told by her telephone service provider that they only maintain records dating back twelve months and that the only records they maintain are records of long distance telephone calls. T.B. says that the relevant time period for the telephone records is over a year ago so those records will not cover the period she needs. Also, she says that long distance telephone records will not assist her.

Lastly, she points out that she nearly always called V.C. on his cellular telephone so he could produce the necessary records for the relevant time period in question. [ 70 ] It is no answer to a party’s failure to abide by a court order to produce telephone records to point out that the other party could produce the records.

The fact that the other party could produce the records goes to the prejudice to that party for the failure of the court ordered party to produce the records. [ 71 ] In any event, it is my view that the better way to handle T.B.’s failure to abide by the court order is to draw an adverse inference against her should there be a conflict between her evidence and V.C.’s evidence which conflict could be resolved had she obeyed the court order and produced the records.

I am of the view that it is just too draconian to deprive T.B., and S. for that matter, of a trial to determine what final orders relating to custody, guardianship, and parenting time are in S.’s best interests because T.B. has failed to abide

by the court order and produce telephone records which would assist in resolving a potential conflict on a relatively isolated part of the evidence. [ 72 ] Accordingly, for all of those reasons I decline to grant V.C.’s application to adjourn generally the trial scheduled to commence on January 14, 2013. CONCLUSION [ 73 ] For the foregoing reasons I make the following orders: i. I dismiss B.B.’s application to summarily dismiss T.B.’s applications for joint custody, joint guardianship, and equal parenting time of M. and B.; ii.

I dismiss V.C.’s application to adjourn generally the trial scheduled to commence January 14, 2013 for ten days; iii. I order that the trial will proceed as scheduled commencing January 14, 2013; iv. I adjourn to the trial B.B.’s and V.C.’s applications brought during these hearings to vary the child maintenance payable by T.B. for the support and maintenance of M., B., and S. with leave to both B.B. and V.C. to apply to have the variation apply retroactively to November 1, 2012; v.

By November 22, 2012 T.B. is to deliver to counsel for B.B. and V.C. her list of witnesses she proposes to call to testify at the trial in January, 2013; vi. By December 6, 2012 B.B. and V.C. are to deliver to T.B. their lists of witnesses they propose to call to testify at the trial in January, 2013; vii. By December 6, 2012 all parties are to exchange one copy of all of the documents they intend on relying upon at the trial in January, 2013; viii. Pursuant to Rule 11(2) of the Provincial Court (Family) Rules T.B. is permitted to call Karen Fenton to testify at the trial in January, 2013; ix.

I vacate all restraining orders in the T.B. v . B.B. matter, Surrey Registry No. F28624 and order, pursuant to section 38(1)(

a) of the Family Relations Act that T.B. shall not be found within 100 meters of B.B.’s residence located at (address), Surrey, British Columbia; x. I order that a transcript of the evidence, submissions, and oral Reasons for Judgment from these hearings on October 31 and November 1, 2012 be prepared and filed in the court files; and xi. I adjourn both matters to the pre-trial conference scheduled for December 13, 2012 at 9:30 a.m. in courtroom 312. ________________________________ The Honourable Judge R.N. Hamilton Provincial Court of British Columbia