Supreme Court

CV 04451


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

   IN THE MATTER OF an application, pursuant
   to s.19 of the Divorce Act, R.S.C. 1985,
   c.D-3.4 (as amended), to confirm a provisional
   variation order;

BETWEEN:

IVA JULIETTE HENWOOD,

Petitioner

- and -

ERIC CLAYTON HENWOOD,

Respondent


REASONS FOR JUDGMENT


1  This is an application to confirm a provisional order varying the support obligations imposed by a divorce judgment and corollary relief order.

2  On April 10, 1992, the Court of Queen's Bench of Alberta granted to Mrs. Henwood a judgment of divorce.  As part of the corollary relief awarded, Mrs. Henwood was granted custody of the two children of the marriage, Diana, who is now 18 years old, and Vincent, now 14 years old.  The corollary relief order also provided that Mr. Henwood pay child support of $200.00 per month per child so long as the children remain children of the marriage within the meaning of the Divorce Act (the "Act").  This order was issued with the consent of Mr. Henwood.
3  Prior to the divorce judgment, an order for interim support was issued by the Alberta court on October 28, 1991.  This order provided for interim support of $200.00 per month per child payable by Mr. Henwood to Mrs. Henwood.

4  The two former spouses now reside in different jurisdictions.  Mr. Henwood resides in New Brunswick while Mrs. Henwood resides in the Northwest Territories.

5  Over time Mr. Henwood fell into arrears on his support obligations.  Also circumstances changed.  The daughter, Diana, moved to New Brunswick in April of 1992.

6  On December 17, 1992, Mr. Henwood appeared in the Court of Queen's Bench of New Brunswick (Family Division) in answer to enforcement proceedings undertaken pursuant to that province's Reciprocal Enforcement of Maintenance Orders Act.  The New Brunswick court, after hearing evidence from Mr. Henwood on the changed circumstances noted above, directed that the hearing be converted into a variation proceeding under s.17 of the Act.   In the result the court issued two orders:

 (1)An order, presumably under the maintenance enforcement legislation, fixing the arrears of support in the sum of $1,700.00 as of December 17, 1992, and directing a payment plan for those arrears; and
 (2)A provisional order, under s.18 of the Act, deleting the support provisions of both the corollary relief order and the interim support order made by the Alberta court.  In both cases the variation was to be retroactive to April of 1992.

7  The provisional order has now come before this court for confirmation.  My duty, pursuant to s.19(7) of the Act, is to make an order either confirming the variation order with or without variation or refusing confirmation.  Further, if I do anything other than simply confirming the order, I must give written reasons for my decision.

8  At the hearing before me I had the benefit of a transcript of the proceedings in New Brunswick.  Also, Mrs. Henwood appeared in person and gave evidence.  In addition, I had the helpful assistance of counsel for the Attorney General of the Northwest Territories who, while not taking any position on the application, provided guidance to me on the applicable procedures.

9  Obviously my only concern is with the provisional variation order.  I have no jurisdiction to deal with the arrears that were fixed as of December.  I think it is also fair to say that Mrs. Henwood has no dispute with those arrears.

10  In considering the variation order, I am satisfied, as was the New Brunswick court, that there has been a change in the circumstances respecting the children for whom support was ordered.  A change in circumstances is a precondition to consideration of a variation:  see s.17(4) of the Act.  I had the benefit of evidence giving me the situation as it currently exists.

11  The daughter, Diana, as previously noted went to New Brunswick in April of 1992.  She is now apparently self-supporting.  The son, Vincent, was with Mrs. Henwood up until June of 1993 when he moved to New Brunswick to live with Mr. Henwood.  It seems to me that the appropriate thing to do would be to delete the support requirement for Diana as of April, 1992, and for Vincent as of June, 1993.  The provisional order, however, deletes both support obligations retroactive to April, 1992.  By also making a retroactive variation to the interim order, all support obligations from the time that Diana moved to New Brunswick would be eradicated.

12  It seems to me that the learned judge in New Brunswick was of the view that since each parent had responsibility for one child then that should be it as far as any additional support is concerned.  I think, with respect, this ignores the fact that the original support order was quite specific in ordering a set sum for each child.  Based on all of the evidence presented to me, and considering the significantly higher cost of living in the Northwest Territories, I do not agree that the support obligations should be deleted entirely.  Instead, the provisional order should be varied so as to maintain the support obligation with respect to Vincent so long as he resided with his mother.

13  The arrears up to December, 1992, were fixed at $1,700.00.  In addition to this amount, Mr. Henwood should also pay the required support for Vincent of $200 per month for the months of January, February, March, April and May of 1993.  Since Diana was not living with Mrs. Henwood during those 5 months, Mr. Henwood does not have to pay any support on her behalf.

14  There is a further item to take into account.  The learned judge in New Brunswick took into account the fact that Mr. Henwood paid the cost of transporting Diana to New Brunswick and divided this expense between the two parents.  Similarly, I should take into account the fact that Mrs. Henwood paid the cost of transporting Vincent to New Brunswick.  This amounted to $1,267.00 so she should be reimbursed by Mr. Henwood for one-half of this sum (which I will set for sake of convenience at $600.00).  It seems to me that the most straightforward way to achieve this reimbursement would be by maintaining the $200 support payments for a further 3 months (June, July and August of 1993).

15  Therefore, as of now, the total amount owing by Mr. Henwood to Mrs. Henwood for past support would be:
(a)arrears as of December 17, 1992 -  $1,700.00
(b)support for Vincent (5 months) -  $1,000.00
 (c)additional support of 3 months -   $  600.00
 (d) total owing -     $3,300.00
less any amounts paid by Mr. Henwood since December, 1992.
16  With respect to the variation of the interim support order of October 28, 1991, I conclude that there is no jurisdiction or reason to vary it.  First, I would think that the interim order was superseded by the corollary relief order issued with the divorce judgment.  Second, the arrears have been fixed up to December, 1992, so there is no purpose in varying the interim order.  Finally, I question whether this procedure applies to interim orders.  Section 17(1) of the Act allows a court to make an order varying a "support order".  By s.2(1) a "support order" means an order made under s.15(2) of the Act.  Subsection 15(2) refers to support orders but it is s.15(3) that deals specifically with interim orders.  I do not think this variation procedure was contemplated to include interim orders after final orders are made.

17  For the foregoing reasons, I hereby issue an order confirming the provisional order issued by the Court of Queen's Bench of New Brunswick but with variation.  Paragraph 1 of the provisional order is varied so that it reads:

"Paragraph 7 of the Corollary Relief Order made by the Court of Queen's Bench of Alberta, Judicial District of Red Deer, on April 10, 1992, be deleted retroactive to September 1, 1993."

Paragraph 2 of the provisional order, dealing with the interim order, is deleted entirely.

18  Mrs. Henwood quite rightly raised the question of costs.  She spent over $730.00 to travel to Yellowknife from her home for this confirmation hearing.  It seems to me that when a court proceeding is instigated by someone then that person should be liable for costs (as in the usual course).  But there is nothing in the Act that speaks of costs.  Also, many of these types of cases are not instigated by individuals but by government agencies such as maintenance enforcement departments.  In any event I doubt that I could issue an order as to costs that would be enforceable in another jurisdiction within the confines of a confirmation hearing.  So I have concluded that I cannot make an order as to costs.

19  A copy of these reasons will be sent directly to Mrs. Henwood and to counsel for the Attorney General who has kindly offered to prepare and file a formal order giving effect to these reasons.  Once that order is filed, I direct the Clerk of the Court to transmit copies of the formal order and these reasons to the Court of Queen's Bench of New Brunswick (Family Division) and to the Court of Queen's Bench of Alberta (Judicial District of Red Deer), in accordance with the requirements of s.19(12) of the Act.





    John Z. Vertes
         J.S.C.

Counsel for the Attorney General
 of the Northwest Territories: Ms. R. Veinott

The Petitioner, Iva Juliette Henwood,
 appearing in person