Vargas v. Berryman

2008 BCSC 1895 Vargas v. Berryman

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vargas v. Berryman, 2008 BCSC 1895 Date: 20081120 Docket: E054002 Registry: Vancouver Between: Elsa Chaves Vargas Plaintiff And Lance Karl William Berryman Defendant Before: The Honourable Mr. Justice Cole Oral Reasons for Judgment Counsel for the Plaintiff: G.W.D. Abrams Counsel for the Defendant: J. Clark (Agent for A. Lessing) Place and Date of Trial/Hearing: Vancouver, B.C. November 20, 2008 Place and Date of Judgment: Vancouver, B.C. November 20, 2008 [1] THE COURT: This is an application by the defendant to set aside a portion of my previous order, where I set out an access schedule based on the fact that he was working as an instructor for Nav Canada, and would be available by three o'clock in the afternoon to pick up the children. [2] The defendant says that he was not aware that the job he was to assume was cancelled until he returned to work after the hearing on October 8th, 2008. Frankly, I find it somewhat suspicious that he was not advised or consulted prior to this change. It seems to me to be rather convenient that he did not succeed in his application and all of a sudden his work schedule has been changed, and therefore he wants my order set aside. I recall very clearly defendant's counsel advising me that his parents were available to help to pick up these children and help with the transportation of these

children. I think it is very important that the defendant be available to help these children in respect to their educational difficulties. [3] I am not prepared to set aside my order. The defendant can make arrangements to ensure that the children are picked up, as I have ordered, and returned, as I have ordered. [4] I want to make it very clear, that the plaintiff should be complying with the terms and conditions of my order, and that she should ensure that these children are participating in all the programs that are available and suitable for these children. I have not allowed the affidavit of the defendant to be used in these proceedings. I have read it, however, and it gives me a great deal of concern that the plaintiff is not assuming her responsibilities. If that, in fact, is the case, I want evidence from the school. I do not want hearsay evidence, although hearsay is allowed on interim applications. I want evidence from the school in respect to these children. [5] I therefore am going to dismiss the application. [6] I am going to be seized of that part of the application, however, dealing with the issue of custody and access. [7] In respect to the application for support, that could be dealt with by some other judge. I am not seized of that matter. [8] Anything else? [9] MR. ABRAMS: I would just ask My Lord for costs of today's application. [10] THE COURT: No, costs will be in the cause. [11] MS. CLARK: Thank you, My Lord. The Honourable Mr. Justice F. W. Cole