M.R.M. v. T.A.H.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.R.M. v. T.A.H., 2005 BCSC 1770 Date: 20051216 Docket: VI99-4349 Registry: Victoria Between: M.R.M. Plaintiff And T.A.H. Defendant Before: The Honourable Madam Justice Brown Reasons for Judgment Counsel for the plaintiff D. Christie Counsel for the defendant J. Donati Date and Place of Trial: April 25 - 29, and November 2 - 4, 2005 Victoria, B.C. [1] This action concerns custody of and access to the parties' three children: J., 15 years old, T., 11 years old, and A., 10 years old. [2] The parties have been separated for nine years. There have been many applications and cross-applications regarding custody and access. Many orders have been granted, and the children moved from one parent to the other. There is a great deal of conflict between the parties and their evidence has been highly contradictory. There was no trial until the trial herein. BACKGROUND FACTS [3] I will summarize the uncontentious background facts to provide a context for the consideration of the issues. [4] This action started in Alberta in 1996. The file was transferred to British Columbia in 1999. [5] Some of the background is summarized in Madam Justice Allan's Reasons for Judgment of August 25, 2000 (on an application to set aside an ex parte order obtained by Mr. M.R.M. in Alberta): the parties were divorced in September 1997 and had joint custody of the children. A number of orders were made in Alberta, where they were then living: an order on June 30, 1998 giving specified access to the children to the plaintiff father, Mr. M.R.M.; an order on October 16, 1998 granting care and control of the children to the defendant mother, Ms. T.A.H.; and, an order on September 7, 1999 giving Ms. T.A.H. sole custody. At the September 7th hearing, the file was transferred to Victoria, British Columbia. On April 26, 2000, the children were placed in the care of the Ministry of Children and Families (the "Ministry") in British Columbia. On June 30th, pursuant to an agreement between the father and the Ministry, the father was given summer access to the children. He agreed with the Ministry to return the children to Duncan, British Columbia on August 15, 2000. Mr. M.R.M. did not return the children. Instead, on August 17th he appeared before the Alberta Queen's Bench and obtained an ex parte custody order. [6] Madam Justice Allan set aside that order, finding that Mr. M.R.M. had failed to disclose a number of material considerations including the letter agreement between himself and the Ministry of Children and Families, the interim custody order, and the Ministry's custody of the children. Madam Justice Allan found that, in saying that the children had come to live with him, Mr. M.R.M. gave false information to the Court of Queen's Bench judge. He also failed to disclose to the Court of Queen's Bench judge that the file had been transferred to British Columbia; suggested that the Ministry supported his application when that was patently false; and, advised the Court of Queen's Bench judge that he did not know Ms. T.A.H.'s address when he was aware that Ms. T.A.H. was represented and was, himself, represented in proceedings in British Columbia the day before his application in Alberta. Madam Justice Allan set aside the Alberta order, saying "It is obvious that he, the plaintiff, did not make full and frank disclosure of numerous material facts." [7] Instead of returning the children to the Ministry when due, Mr. M.R.M. and his wife, J.T., had taken the children to the United States. They were found some months later in Arizona. The children were taken into custody by Arizona child services and were transported back to British Columbia. [8] In January 2002, the Director of the Ministry wished to place the children with their father on an interim basis to consider whether their father was in a position to provide a suitable home for the children. The placement did not relinquish the Ministry's interim custody, but was a placement for the care and control of the children, pending a determination of who would have custody. In April 2002, Mr. M.R.M.'s application for custody came on for hearing before Madam Justice Dorgan. At that time, Ms. T.A.H. consented to Mr. M.R.M. receiving sole custody and interim guardianship of the children, with specified access to her. [9] On September 10, 2004, Mr. Justice Bouck ordered that Ms. T.A.H. have interim sole custody and guardianship of the children pending trial of the issues of custody and access, which he ordered to take place on April 25, 2005. [10] On September 15, 2004, Madam Justice Baker stayed the order of Mr. Justice Bouck and ordered that the parties would have interim joint custody and interim joint guardianship of the children and that their primary residence, pending further order of the court, would be with Mr. M.R.M. in B.[ ], Alberta. On April 5, 2005, Mr. Justice Williamson varied Madam Justice Baker's order and ordered that the children would reside with their mother in S.[ ], British Columbia until conclusion of the trial. [11] The trial began before me on April 25, 2005. On April 29, 2005, the trial had not yet finished and I advised the parties that I would not alter the children's living arrangements, pending conclusion of the trial, which I then adjourned to November 2, 2005. Ultimately, the trial was scheduled to continue November 2, 3, and 4, November 7, and into the week of November 14, 2005. [12] On November 2, 2005, Mr. M.R.M.'s counsel, Mr. Christie, attended at court and advised the Court that he had a letter from his client, which he wished to file. That letter indicated that Mr. M.R.M. would no longer participate in the proceedings and that he was discharging Mr. Christie. I excused Mr. Christie, although he remained in the courtroom. Neither Mr. M.R.M. nor Ms. J.T. was present. [13] On November 3, 2005, I received a letter through the registry, apparently from Mr. M.R.M., indicating that he wished to attend the proceedings by conference call. I determined that that was not appropriate and provided reasons at that time for my decision. I asked the registry to contact Mr. M.R.M. by telephone and advise him of my decision. The trial concluded November 4, 2005. Mr. M.R.M. did not attend court at any time during the November portion of the trial. ISSUES [14] The issues before this Court are: 1. custody and guardianship of the children; 2. access to the children; 3. support for the children. ANALYSIS 1. Custody of the Children [15] The factors that the court is to consider with respect to child custody are set out in s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and s. 24 of the Family Relations Act, R.S.B.C. 1996, c. 128. The most pertinent portions of s. 16 of the Divorce Act are: (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [16] Section 24(1) of the Family Relations Act provides: (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (a) the health and emotional well being of the child including any special needs for care and treatment; (b) if appropriate, the views of the child; (c) the love, affection and similar ties that exist between the child and other persons; (d) education and training for the child; (e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately [17] Considering these factors, I am satisfied that Ms. T.A.H. should have sole custody and guardianship of the children. In my view, Ms. T.A.H. is the parent most likely to ensure that the children maintain a good relationship with their father and to ensure that their father has appropriate access to the children. I am satisfied that Ms. T.A.H. is able to and indeed is looking after the children's health and welfare. After interviewing the children, I am satisfied that they are sufficiently mature to express their true wishes and to appropriately consider their interests. While the children love each of their parents, they want to live with their mother. [18] In light of this matter's contentious history, I will now review in detail the issues raised by the parties, my conclusions on these issues and my determinations with respect to credibility. [19] I note that although Mr. M.R.M. did not attend the continuation of the trial on November 2nd, in the course of giving evidence at an earlier stage, he raised several reasons why Ms. T.A.H. should not have custody of the children. Alcoholism [20] The most significant of these reasons is that Ms. T.A.H. was, and is, an alcoholic and that her alcoholism prevents her from responsibly caring for the children. [21] Ms. T.A.H. acknowledges that she has abused alcohol. She says that she was a binge drinker; she would go for extended periods of time without drinking and then would drink for an extended period of time. She says, however, that her drinking did not interfere with her ability to care for her children because she always ensured that there was a competent care giver available to look after the children when she was drinking. She says that she used alcohol to deal with depression and that until the spring of 2000 she was able to cope with her alcohol consumption and look after the children adequately. Ms. T.A.H. acknowledges that in the spring of 2000 she became overwhelmed with depression, following her mother's death from cancer, and concluded that she was no longer able to care for the children. She contacted the Ministry and arrangements were made for the children to be placed in foster care with their regular daycare providers. It was her understanding that she and the Ministry would work toward having the children return to her home when she was able to control her depression and alcoholism. That is consistent with the transcript of proceedings before Judge Hubbard on August 16, 2000 where Mr. Shadbolt of the Ministry of Child, Family and Community Services stated: This risk assessment is showing at this time that things are progressing nicely and we will likely in some planning work towards returning to mom. [22] Ms. T.A.H. says that she has not consumed alcohol for more than two years. [23] This is consistent with a letter from Ms. T.A.H.'s doctor dated, May 21, 2004. He states: I have acted as Ms. T.A.H.'s family doctor dating back nine years. She has had past difficulties with anxiety/depression and collateral alcohol abuse. She is currently in regular counselling. She has been compliant with alcohol cessation for well over one year. in the past, while utilizing alcohol, she has had abnormal blood counts and liver function tests. T.A.H. has been compliant with regular chemistries since early March of this year. These have shown absolutely normal indices in keeping with alcohol cessation. [24] In addition, Mr. B. (Ms. T.A.H.'s partner) gave evidence. He has lived with Ms. T.A.H. since the spring of 2003. She has not had any problems with alcohol since he has been living with her. He was a neighbour of Ms. T.A.H.'s before he started living with her. He said that when she was drinking, she would appear fine for extended periods of time and then would withdraw, closing the curtains, and would not be seen for several days. He said that she was never a partier and that there were never people drinking around her or loud parties at her house. She would simply disappear from sight when she was drinking. He is certain that were she using alcohol at this time he would know. [25] Finally, the eldest child J. said in my interview with him in April that he had not seen his mother consume any alcohol for a long time prior to April 2005. He confirmed, in his testimony in this trial, that his mother has not been drinking. [26] I conclude that Ms. T.A.H. has not been drinking since approximately March 2002 and that her consumption of alcohol no longer impedes her ability to properly parent her children. Living Arrangements [27] Mr. M.R.M. also expressed concerns about Ms. T.A.H.'s living arrangements and their suitability for the children. He suggested that Ms. T.A.H. is lax with discipline and that this is the reason the children want to live with her. He was particularly concerned that J. would be running wild and would get into trouble. He was also concerned about Ms. T.A.H.'s adult son, L., and his influence on the children. I addressed these concerns with Mr. B. and with J.. Each of them provided similar evidence: the children are woken up and provided breakfast by their mother; they attend school; after school they play with their friends, come in for dinner, do homework, and watch television. J. sometimes goes out with his friends after dinner, but is home by 9:30 p.m. most nights. J. plays hockey on a team. His mother is the manager for the team and drives J. to most of his practices and games. Mr. B. drives J. one time per week when Ms. T.A.H. is not available. The girls take ballet lessons from their mother at a local community centre and plan to play soccer in the spring. The children and Mr. B. seem to like each other. Mr. B. helps the girls with some of their homework and J. sometimes assists Mr. B. with his carpentry/construction jobs. I asked each of the children about their relationship with Mr. B.. Each indicated that it was fine. L. lives in Victoria. He sometimes comes to visit with Ms. T.A.H., Mr. B. and the children, although they haven't seen him since the summer. [28] I am satisfied that Ms. T.A.H.'s living arrangements are appropriate and are suitable for the children. There is no indication of lax discipline or that the children have chosen to remain with their mother because of lax discipline. There is no evidence to support Mr. M.R.M.'s concern that L. is a bad influence, indeed, he is rarely around the children. Education [29] Mr. M.R.M. was also concerned about the children's education. [30] The girls have attended the same school since the spring of 2005. They are doing well. J. is happy and seems to be doing well at his school. J. has renewed friendships that he had while he lived with his mother before the events of 2000. (Ms. T.A.H. has lived in the same location since 1999 and J., who was then 8 years old, made a particular friend with whom he is still good friends.) Exerting Pressure [31] Mr. M.R.M. is concerned that Ms. T.A.H. is pressing the children to say that they want to live with her. I asked the children specifically about this in April 2005 and again in November 2005. Ms. T.A.H. was not present on either occasion. The children told me that their mother is not pressing them to stay with her. However, their father puts considerable pressure on them, as detailed below. I am satisfied that the children are stating their true views when they indicate that they wish to live with their mother at this time. Failure to Exercise Access [32] Mr. M.R.M. says that Ms. T.A.H. is not sincere in seeking custody of the children; he asserts that she failed to exercise access that was provided to her when the children were living with him. I do not accept this assertion. I prefer the evidence of Ms. T.A.H. and Mr. B. on this point. When the children lived with their father, Ms. T.A.H. was not provided with residential addresses. She could see the children only when and where their father proposed. From the spring of 2002 until late 2004, she rarely saw the children. She saw the children once in the presence of Mr. M.R.M.'s parents at their home; a second time at a motel, where all of the children and Mr. M.R.M.'s parents were present in one motel room for the entire visit; and a third time at a motel, with Mr. M.R.M. and Ms. J.T. supervising the access. In my view, Mr. M.R.M. actively thwarted Ms. T.A.H.'s attempts to have reasonable access to her children by insisting on supervised access, by failing to provide residential addresses, by failing to make the children available to Ms. T.A.H. when she was able to exercise access, and by insisting on access when and where Mr. M.R.M. determined. I do not accept Mr. M.R.M.'s assertion that Ms. T.A.H. has no real interest in her children. Children's Interests [33] Mr. M.R.M. asserts that he and his wife, J.T., provide a stable, loving household for the children and that they are able to best serve the children's interests. He asserts that he has done all that is possible to ensure that the children maintain a relationship with their mother. [34] While I accept that Mr. M.R.M. loves his children, I did not find Mr. M.R.M. to be a credible witness and, in my view, Mr. M.R.M. is not able to provide a happy, stable environment at this time to best serve the interests of his children. Nor do I accept Mr. M.R.M.'s evidence that he has tried to ensure that the children have a good relationship with their mother. [35] I have a number of concerns with respect to Mr. M.R.M.'s conduct and circumstances, as these impact the children: (a) frequent moves and remoteness; (b) interference with access; (c) pressure on the children, (d) disregard/abuse of the court process. I will address each of these. Frequent moves and remoteness [36] Even when Mr. M.R.M. and Ms. T.A.H. lived together, Mr. M.R.M. frequently changed jobs and moved from one location to another. Ms. T.A.H. says that they moved every 12 to 18 months due to Mr. M.R.M.'s repeated problems with employers, which included dismissal for fudging the books, manipulating the numbers, theft, fraud. On at least one occasion, Mr. M.R.M. was charged and convicted of this conduct: in 1995 he was convicted of theft over $5,000 from his employer, Key Ag Ventures. Ms. T.A.H. says that Mr. M.R.M. has been bankrupt twice and is constantly on the move to avoid creditors. She says that to avoid creditors he will not provide a residential address or a residential telephone number. To avoid detection, he prefers to use commercial postal boxes in towns several kilometres from where he lives. [37] Mr. M.R.M. says that he and his wife choose to live in remote areas for the benefit of the family. He says country living provides a healthier lifestyle for the children. He denies that he is the cause of any problems with his employers and states that past problems arose because employers didn't pay him, resulting in him starting actions against them. He adds that Ms. T.A.H. has frequently phoned his employers and caused him difficulties with his employers. He does not deny his conviction for theft. Mr. M.R.M. says that he avoids providing a residential address or phone number because he does not want to be harassed by Ms. T.A.H.. He says that he must use commercial mail boxes miles from the nearest town because Canada Post is not able to provide local service. [38] With respect to his frequent moves, regardless of which explanation is correct, the moves do affect the children. For example, in 2002, the children lived with Mr. M.R.M. in the Cochrane, Alberta area. In 2003, they moved to the area of Big Lake, British Columbia. In 2004, they moved to B.[ ], Alberta. These frequent moves mean that the children are not able to develop long term ties in any community. [39] I do not accept Mr. M.R.M.'s explanation for refusing to provide a residential address and land phone number. He was asked in cross-examination about the employers that he said that Ms. T.A.H. had harassed. He named four employers from the time when they were married. He was asked what he meant by harassment and said that one phone call from Ms. T.A.H.'s counsel to one of his employers would constitute harassment. Clearly this is not harassment and would not justify refusing to provide Ms. T.A.H. with information regarding her children's address and phone number. Mr. M.R.M.'s explanation for using commercial mailboxes is simply incredible. In 2002, the M.s were living in the area of Cochrane, Alberta. Ms. J.T. says that they were living at or near C.[ ], Alberta. The address which Mr. M.R.M. chose to provide was at Mailboxes Etc. in Red Deer, Alberta. Even if Canada Post could not provide mail service (which seems unlikely), there are many communities, such as Calgary, closer than Red Deer, where mail can be received. I conclude that Mr. M.R.M. chose to provide mailing addresses with no connection to his residential location to avoid detection, by both Ms. T.A.H. and others. His frequent moves, remote addresses and failure to provide a residential address impeded Ms. T.A.H.'s ability to exercise access: often she did not even know where the children were living. When Mr. M.R.M. moved to Big Lake, for example, he advised Ms. T.A.H. that they were "moving to the Prince George area". Interference with access [40] While the children were in his custody, Mr. M.R.M. pressed for and obtained orders that would allow Ms. T.A.H. only supervised access. The evidence did not satisfy me that the children were at risk when Ms. T.A.H. exercised access. Imposing supervised access on Ms. T.A.H. meant that her periods with the children would be limited in duration and would be supervised by someone approved by Mr. M.R.M.: his parents or himself. Ms. T.A.H. could not truly participate in her children's lives in such circumstances. Pressure on the Children [41] From time to time each of the parties has provided letters or affidavits from the children, purportedly voicing the children's wishes as to where they would like to live. Each of the parties asserted that the other was pressing the children and forcing the children to parrot that parent's views. From my interviews with the children, it is apparent that their father has and continues to put pressure on them to say that they want to live with him. Even though the Court directed both parties not to discuss the issue with the children, Mr. M.R.M. continues to do so. The pressure is such that the children avoid speaking to their father on the telephone. Disregard/abuse of the court process [42] Mr. M.R.M.'s conduct in these proceedings over several years demonstrates disdain for court processes. [43] First, as described above, Mr. M.R.M. took the children to Arizona in August 2000. In his evidence, Mr. M.R.M. suggested that his ex parte application in Alberta was legitimate, that he believed that it was appropriate to take such steps to obtain custody of the children, and that the Ministry in British Columbia supported him. He said that he left the country with the children for a holiday immediately after obtaining the order. Ms. J.T. joined them. He learned on August 18, 2000 that Ministry representatives had arrived to collect the children, but by then he and the children were in the United States. He said that he was attempting to establish some normality in the children's lives, so did not return to Canada with the children. [44] Mr. M.R.M.'s characterization of events is patently false. On August 16, 2000, the day before his ex parte application in Alberta, there was a hearing before Judge Hubbard in Duncan. Mr. M.R.M. was represented at that hearing by Mr. Christie. In the transcript of that hearing, Mr. Christie indicates Mr. M.R.M.'s position with respect to his agreement to return the children: I understand he has signed an agreement, which he says he signed under duress, to return them on August 15th. He doesn't want to return them because they don't want to come back. And he wanted the opportunity to be heard and to, if need be, call evidence to deal with this issue. The Court advised Mr. Christie: But what is clear, Mr. Christie, is that the children should have been returned on August 15th, and they haven't been returned, and I presume the Director will take appropriate action in Alberta to have the children apprehended and brought back here if they are not voluntarily returned, won't you Ms. Reed? Mr. Christie stated: Ok, well, I can report the circumstances to my client and I guess he will At the ex parte proceedings in Alberta on August 17th, 2000, Mr. M.R.M. said: In April of this year, Social Services, the Ministry of Social Services in B.C. apprehended her. She gave custody back to them. Since then, the kids have come to live with me at the end of school. They have been with me over here in Alberta. We have tried to . Mr. M.R.M.: It provided her with custody, with me having open and reasonable access. The Court: O.k. Now, you are seeking to change that since you have got custody. Mr. M.R.M.: Now we are seeking to vary that, that's right, sir. The Court: Have you served her with papers? Mr. M.R.M.: We don't know where she's at. [45] Mr. M.R.M. did not advise the Court of his agreement with the Ministry to return the children on August 15th. He did not disclose that the children were with him only for summer access, and no more. He did not advise the Court that he and Ms. T.A.H. were both represented in proceedings in British Columbia. [46] Second, on September 10, 2004, Mr. Justice Bouck granted interim sole custody to Ms. T.A.H., pending trial. The order provided in part: Any Peace Officer .is directed to assist in enforcing the terms of this order, such assistance to include entering into and executing this order in any house or dwelling believed to be occupied by M.R.M., J.T., or the aforementioned children. [47] Ms. T.A.H. attempted to find Mr. M.R.M. and the children (having found their location despite Mr. M.R.M.'s efforts), but found that they had moved once again. The RCMP, attempting to locate the children, contacted Mr. M.R.M. on his cell phone. He refused to disclose the location of the children and refused to deliver them to Ms. T.A.H.'s custody or to the nearest RCMP station, saying: "Are you and the Queen's cowboys going to come and get me?" [48] Third, on April 29, 2005, when this trial was adjourned and the parties were advised that the children would remain in Ms. T.A.H.'s custody pending conclusion of the trial, Mr. M.R.M. refused to exercise access to the children, advising the Court that he would return to Alberta and did not wish to see the children before he left. [49] Fourth, on November 2, 2005, Mr. M.R.M. advised the Court that he would not participate further in these proceedings. Mr. M.R.M. and Ms. J.T. did not attend to conclude their evidence. (Mr. M.R.M.'s oral evidence had been concluded, but he had not yet produced financial records, as ordered, while Ms. J.T. had given evidence in chief but had not been cross-examined.) On November 3, 2005, Mr. M.R.M. wrote to the registry to advise that he wished to attend proceedings by conference call. He attached a letter he had written to Ms. T.A.H. dated October 5, 2005, in which he demanded that the children travel to Alberta for an access visit from November 9 to 13, 2005, and attached flight booking confirmations for the three children. This suggests that by October 5, Mr. M.R.M. had decided not to attend the continuation of the trial and had booked tickets for the children to travel to Alberta, instead, as these days fall between those scheduled for the trial, when Mr. M.R.M. would have been in Victoria, had he attended the trial, and could easily have visited the children. [50] I have concluded that Mr. M.R.M. is willing to participate in court proceedings only when he perceives them to be to his advantage. Otherwise, or where matters do not go as he would like, he does not feel bound by court orders or process. Equally, he does not consider the effect of his actions and attitude on his children. Taking the children to Arizona where they were ultimately, and predictably, apprehended, and refusing to see his children in April are two examples of Mr. M.R.M.'s confrontational approach to the courts and his inability to put the interests of his children ahead of his own. [51] I turn now to my overall conclusions on the credibility of the parties in this dispute. [52] I found Ms. T.A.H. to be a credible witness. She presented her evidence in a straightforward and coherent manner, as did her partner Mr. B.. Her evidence was logical, often with supporting documentary or other evidence. I did not find Mr. M.R.M. to be a credible witness. He was argumentative and evasive. He did not provide required (and ordered) financial documentation to demonstrate his income and employment. I have noted above some of the significant areas where I rejected his evidence. 2. Access [53] In July 2005, I ordered specified access to Mr. M.R.M.. I understand that the children did not travel to Alberta to visit with their father. Once again, Mr. M.R.M. asserts (in correspondence) that Ms. T.A.H. circumvented the order, while Ms. T.A.H. says that she was trying to ensure that Mr. M.R.M. complied with the order. Whichever version is correct, Mr. M.R.M. did not have access to the children this summer. I also ordered that Mr. M.R.M. would have telephone access to the children twice a week. Ms. T.A.H., Mr. B. and the children say that the children avoid Mr. M.R.M.'s telephone calls, and their mother's efforts to make them take his calls, because Mr. M.R.M. continues to pressure them about living with their mother. J. described the calls as: "What's the matter? Don't you want to live with us? Are we such bad parents?" [54] Mr. M.R.M. ignored directions from the Court in April 2005, and the terms of the court order of July 28, 2005: Neither party shall speak of the issues surrounding the trial with the children and will not discuss with the children anything to do with their residence or where they want to live. His conduct has made the children reluctant to speak with him. Despite this, it is obvious that the children love their father and would like to speak with him and see him, if he would simply interact with them about their lives and interests and abandon his focus on custody and related issues. I hope that Mr. M.R.M. can come to understand that it is in his interest, as well as the children's interest, to maintain his relationship with the children, even though they live with their mother. [55] The children clearly feel somewhat insecure, and concerned about their father's response to them when he exercises access, whether by telephone or in person. Ms. T.A.H. says that the children feel anxious about travelling to Alberta to visit their father. She says that they are concerned that he will refuse to return them to live with her. Although the children did not say this expressly, they said that they would like to have their father exercise access in British Columbia initially, leaving open the possibility of later visits to Alberta. [56] Access is most likely to be successful if the children feel secure and are able to build a more normal relationship with their father, a relationship not focussed on custody issues. I will make the following order for access: 1. Mr. M.R.M. may phone the children at their residence between 7:00 p.m. and 8:00 p.m. Mondays and Thursdays. Ms. T.A.H. will allow the children to telephone or email Mr. M.R.M. whenever they wish. 2. Mr. M.R.M. may email the children at any time. 3. Mr. M.R.M. shall have weekend access to the children between the hours of 10:00 a.m. and 8:00 p.m., on 7 days' notice. 4. Mr. M.R.M. shall have access to the children for four consecutive days at Christmas and spring break, between the hours of 10:00 a.m. and 8:00 p.m., on 7 days' notice. 5. Mr. M.R.M. shall have access to the children for two consecutive weeks summer vacation, with 60 days' notice to Ms. T.A.H. of the proposed dates. 6. The children shall not be removed from Vancouver Island during an access visit. 7. This order will be enforceable by a 'police assist' clause, in the standard form. This order will be reviewed, as to access, in one year. I hope that access will be proceeding well and can be expanded at that time. I will remain seized of this matter. 3. Support for the children [57] There is a paucity of information regarding Mr. M.R.M.'s current financial circumstances. He testified that he is working "in the oil patch", through his wife's company. Ms. J.T. described the company as Mr. M.R.M.'s company, then as "our" company. I understand that the company contracts with the employer to provide Mr. M.R.M.'s services; the company is paid for Mr. M.R.M.'s services and that Mr. M.R.M. and Ms. J.T. live on this income. There is no evidence on the amount paid to Mr. M.R.M. or the company. Mr. M.R.M. was ordered to produce 2005 bank statements for himself and his companies. I am advised by counsel for Ms. T.A.H. that he did not, and said that there were none. Because Mr. M.R.M. and Ms. J.T. did not attend the conclusion of the trial, the matter could not be pursued. [58] The financial information available to me is very limited and dated. Mr. M.R.M. has provided one page photocopies of notices of assessment for Mr. M.R.M. and [ ] Alberta Inc., but no supporting documents (such as bank statements, T4 forms, cheque stubs from employers, tax returns), which are clearly relevant and have been demanded. The notices of assessment show Mr. M.R.M.'s income for 2001 - 2003 to be approximately $10,500, and the company's income for the same period to be $0. [59] In August, Mr. M.R.M. agreed to pay $600 per month in child support, pending conclusion of the trial. He has made two payments. Ms. T.A.H. asks that I impute an income of $100,000 to Mr. M.R.M. and set child support based on this imputed income. [60] Mr. M.R.M. has avoided providing up to date and comprehensive financial information. He has not been forthcoming. I am not satisfied that the one page notices of assessment reflect his true income. His reluctance to produce fulsome information and the evidence that he has been working in the oil patch since June 2004 suggests to me that his income is significantly higher than $10,500. I must attribute a reasonable income to him. I will impute an income of $50,000 and will order child support payments of $911 per month. [61] Mr. M.R.M. may apply to vary the order for child support on production of comprehensive financial records for him and any other entity to which or through which he provides his services and directly or indirectly generates income for himself and Ms. J.T.. [62] Ms. T.A.H. will have liberty to continue to seek further information regarding Mr. M.R.M.'s income and may apply to vary the order. In the Counterclaim, Ms. T.A.H. asks for an order that Mr. M.R.M. produce documents relating to two companies. I do not have evidence regarding these companies and their relationship to Mr. M.R.M., which would allow me to make this order. Ms. T.A.H. may pursue this relief in chambers, with appropriate supporting materials. [63] Ms. T.A.H. is entitled to costs at scale 3. CONCLUSION 1. Ms. T.A.H. will have sole custody and guardianship of the children. 2. Mr. M.R.M. may phone the children at their residence between 7:00 p.m. and 8:00 p.m. on Mondays and Thursdays. Ms. T.A.H. will allow the children to telephone or email Mr. M.R.M. whenever they wish. 3. Mr. M.R.M. may email the children at any time. 4. Mr. M.R.M. shall have weekend access to the children between the hours of 10:00 a.m. and 8:00 p.m., on 7 days' notice. 5. Mr. M.R.M. shall have access to the children for four consecutive days at Christmas and spring break, between the hours of 10:00 a.m. and 8:00 p.m., on 7 days' notice. 6. Mr. M.R.M. shall have access to the children for two consecutive weeks summer vacation, with 60 days' notice to Ms. T.A.H. of the proposed dates. 7. The children shall not be removed from Vancouver Island during an access visit. 8. This order will be enforceable by a 'police assist' clause, in the standard form. 9. Mr. M.R.M. will pay child support of $911 per month. 10. I will remain seized of this matter. 11. Ms. T.A.H. will have costs at scale 3. "B.J. Brown, J." The Honourable Madam Justice B.J. Brown