Supreme Court

SC CIV 7ib oog

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES ) BETWEEN:

JOHN EDWARD (JACK) KUPEUNA, - and - \ ALICE MARY KUPEUNA,

Trial Held at Yellowknife, N.W.T. June 29, 1976, and September 20, 1976

) Judgment of the Court filed September 22nd 1976. Decree Nisi granted to be made Absolute in three months, Counter Petition for Divorce dismissed. Custody of the infant Pamela Mary Joy Kupeuna to the Respondent. Maintenance for the infant Pamela Mary Joy Kupeuna in the sum of $50.00 per month. Reasonable Access to the Petitioner. Reasons for Judgment by: The Honourable Mr. Justice C. F. Tallis

Counsel on the hearing: Mr. Roger Kimmerly for the Petitioner Miss Susan Cr-;n .̂ or the .̂ v.-sponcent ^ ^

Petitioner Respondent V

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: JOHN EDWARD (JACK) KUPEUNA, Petitioner - and -

ALICE MARY KUPEUNA, Respondent Counsel on Hearing: Mr. Roger Kimmerly for the Petitioner Miss Susan Green for the Respondent

REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE C. F. TALLIS In this action the husband petitions for divorce on the ground of adultery on the part of his wife with one Louis Hill. The wife in her Answer denies the material allegations and counter-petitions for divorce firstly on the ground of cruelty and, secondly on the ground of adultery on the part of her husband with an unnamed female. The husband in his Answer to the Counter-Petition denies all the material allegations. The hearing of these proceedings commenced at Yellow-knife, Northwest Territories on June 29, 1976 but it was not possible to hear all of the evidence because Louis Hill was not present. The hearing was accordingly adjourned. In the interim

- 2 -Counsel for the parties agreed that the evidence of Louis Hill of Frobisher Bay could be tendered by way of affidavit. This affidavit was filed before the Court on September 20, 1976. Counsel for the petitioner indicated that he did not wish to cross-examine Mr. Louis Hill on his affidavit. '' The petitioner and the respondent were married at Yellowknife, Northwest Territories on July 2, 1966. Prior to their marriage they lived together and one child Pamela Mary Joy Kupeuna was born on August 29, 1965. The petitioner readily ack­nowledges that he is the father of Pamela and claims custody of her. The parties separated in November of 1974 and have not lived together since that time. Prior to their separation, matri­monial difficulties arose and from hearing the evidence I am satisfied that the major difficulties were due to sexual incompatibility No useful purpose would be served by canvassing the intimate de­tails of this sexual incompatibility. In this particular case I am satisfied that adultery has been proven on the part of the respondent wife and that a decree nisi should be granted. During the course of argument Counsel for the respondent wife indicated that a decree on this basis was not being opposed having regard to the evidence adduced. With respect to the cross petition I am not satisfied that the allegations have been proven and accordingly the same will stand dismissed.

- 3 -The principal issue to be determined in this case centres around the custody of the infant Pamela Mary Joy Kupeuna. At the time of the separation between the husband and wife, the infant child Pamela Mary Joy Kupeuna went with her mother. Under the terms of the Separation Agreement between the husband and wife, filed as Exhibit #1, the custody of the child Pamela was committed to her mother, the respondent in this action. An application was made before Morrow J. on January 22, 1976 by the petitioner in Action No. SC 3283 for custody of Pamela Mary Joy Kupeuna. This application was refused. I turn now to a consideration of the issue of custody of Pamela Mary Joy Kupeuna. On the evidence I am satisfied that both the husband and wife have genuine love and affection for their daughter. Since their separation they have been able to handle the question of access in a mature way and I commend them for this approach. I will not review all of the facts in great detail be­cause this issue was fully and carefully canvassed in argument. s. After the husband and wife separated in November 1974 at Yellowknife Pamela lived with her mother. There is no doubt that both her mother and father acted with indiscretion after the separation. However I prefer to attribute their conduct to the traumatic effect of their separation. At the time of the trial both husband and wife appeared to be snotionally stable and

- 4 -I mature so that no useful purpose would be served in reviewing this branch of the evidence. \^ The respondent wife met Louis Hill in December of 1974 and she started going out with him. This association ripened into a romance and in March of 1975, they commenced living together. The uncontradicted evidence of Louis Hill is set forth in his affidavit which reads as follows: " I, LOUIS HILL, of the Town of Frobisher Bay, in the Northwest Territories, MAKE / OATH AND SAY: 1. THAT I have personal knowledge of the matters hereinafter deposed to except where stated to be on information and belief. 2. THAT I am presently residing in the Town , of Frobisher Bay with Alice Kupeuna, the I Respondent and Counter-Petitioner in this matter and her daughter, Pamela, with whom I have been residing since March of 1975. 3. THAT Pamela is the child of Alice Kupeuna and John Edward (Jack) Kupeuna, the Petitioner and Counter-Respondent in this matter and was born during their marriage on the 29th day of August, 1965. 4. THAT I was born on August 21,- 1944 in Toronto, Ontario, am in good health, stand five feet nine inches tall and weigh 150 lbs. 5. THAT I graduated from high school in 1963 having entered the army in 1961 where I remained for 9 years. During that time I also trained as a Tinsmith having taken an Army Apprenticeship Program. 6. THAT I entered Durham Community College in Oshawa, Ontario in 1971 and graduated in 1973 from a course training me as an Electronics Technician. ^

WB^^^^aSSB^ - 5 -'7, THAT I am presently employed with the Canadian Broadcasting Corporation in Frobisher Bay as an Electronics Technician receiving a salary of approximately $17,000 which includes Northern Allowance. X.v^ 8. THAT I commenced my employ with the Canadian Broadcasting Corporation as an Electronics Technician in the City of Yellow-knife, in the Northwest Territories in September of 1974 and transferred to Frobisher Bay in January of 1976. 9. THAT I intend to remain in Frobisher Bay for some years before returning to Yellow-knife and anticipate remaining in the employ of the Canadian Broadcasting Corporation for an indefinite number of years. 10. THAT I am presently supporting Alice Kupeuna and Pamela Kupeuna on my salary and consider our financial situation secure and stable.

11. THAT we are presently residing in Govern­ment Housing in Frobisher Bay for which a nominal rent of $95.00 a month is paid and that Pamela has her own bedroom. 12. THAT I intend to marry Alice Kupeuna as soon as possible and that we are planning to have more children; that Pamela has been in­formed of our future plans and appears pleased with our coming marriage and any future brothers and sisters. 13. THAT I consider myself a father and friend to Pamela and that I love her and look forward to future years with her as part of my family. 14. THAT I consider my relationship with Pamela a good one and that she appears to like and re­spect me.

15. THAT Pamela appears happy and content with her friends, activities and home life and is doing well in school.

16. THAT Alice Kupeuna and I are presently saving money for a down pa\-T>ent on a home in Yellowkni-:e v/here wo soaii live with Paraela after its purchase.

- 6 -"17. THAT I have no objection to Pamela visiting with John Edward (Jack) Kupeuna, the Petitioner and Counter-Respondent in this matter, and would co-operate with any Order made by this Honourable Court regarding access and visiting rights, though I have missed Pamela in the past when she has been away from our home. 18. THAT Pamela will be going on holidays with Alice Kupeuna and myself during the month of August to visit my relatives and friends in the Eastern provinces of Canada and that she appears excited and eager about the trip. 19. THAT I believe Alice Kupeuna to be a good and loving mother to Pamela and that the three of us have a solid and stable family relationship in all respects. 20. THAT I make this Affidavit in support of the Application of Alice Kupeuna for custody of Pamela and to help assist this court in the determination of this issue." On the evidence I am satisfied that Pamela Mary Joy Kupeuna gets along well with her mother and Louis Hill. The evidence establishes that the respondent wife is a "good" mother, who is quite conscious of the needs of her daughter Pamela Mary Joy Kupeuna. The evidence satisfies me that Pamela is doing well in school at Frobisher Bay, Northwest Territories. On the basis of the evidence adduced I am satisfied that the re­spondent wife is carefully planning for the future of Pamela Mary Joy Kupeuna. There are deep and abiding ties between the mother and daughter. The petitioner also loves his daughter and urges that custody should be granted to him because his wife is primarily

^

- 7 ­responsible for the break-up of the marriage and by taking the infant Pamela Mary Joy Kupeuna to Frobisher Bay, Northwest Territories she has deprived the child of contact with her own family and culture. After careful consideration of the evidence I feel that I must reject this contention. In approaching the problem of custody the paramount conisderation is the welfare of the child Pamela. This principle has been recognized in our jurisprudence for many years and I refer to the following, inter alia, authorities: MoKee v. McKee 1951 A.C. 352; Storey v. Storey (1953) W.W.R. (NS) 214; Farden v. Farden 8 R.F.L. 183; Francis v. Francis 8 R.F.L. 209; Phillips v. Phillips 14 R.F.L. 75; Talsky v. Talsky 21 R.F.L. 27; Re Pittman and Pittman 23 D.L.R. (3d) 131 and Schulz v. Schulz 14 R.F.L. 237. Applying this principle to the present case I am satis­fied on the balance of probabilities that the welfare of the in­fant Pamela Mary Joy Kupeuna will be best served if she is in the custody of her mother, the respondent wife. In coming to this conclusion, I have carefully considered all the evidence and I am satisfied that the respondent is a "good" mother and fit per­son to have the custody of Pamela Mary Joy Kupeuna. On the question of access Counsel advised that regard­less of the outcome of the trial, there was no need at this time to specifically spell out the terms of access. This observation is

i - 8 ­amply supported by the evidence and I hope that the parties will be able to continue to handle the question of access in a manner beneficial to all concerned. On the issue of maintenance I feel that the sum of $50.00 per month for the child Pamela Mary Joy Kupeuna is satis­factory having regard to the fact that the husband will have fairly heavy expenses in connection with access. There will therefore by judgment as follows: 1. In the original divorce petition there will be a decree nisi for the dissolution of the marriage between the petitioner and the respondent such to be made absolute at the expiration of three months unless sufficient cause be shown why it should not be made absolute. The counter petition for divorce is dismissed. I 2. AND IT IS FURTHER ORDERED AND ADJUDGED THAT until further Order of this Court the custody of the person of the infant Pamela Mary Joy Kupeuna be and is hereby committed to the respondent Alice Mary Kupeuna. 3. AND IT IS HEREBY FURTHER ORDERED AND ADJUDGED THAT the petitioner John Edward (Jack) Kupeuna do have access to the said infant Pamela Mary Joy Kupeuna at reasonable times and upon such con­ditions and terms as may from time to time be agreed upon by the petitioner and the respondent; or in the absence of such agreement at such times and upon such terms and conditions as this Honour­able Court may from time to time direct and order upon the application of either the petitioner or the respondent with respect thereto. 4. AND IT IS FURTHER ORDERED AND ADJUDGED THAT the petitioner John Edward (Jack) Kupeuna do pay to the respondent Alice Mary Kupeuna the sum of $50.00 on the first day of October, A.D. 1976 and thereafter a like sume of $50.00 on the first day of each and every consecutive calendar month \

- 9 ­for the maintenance of the infant Pamela Mary Joy Kupeuna so long as she remains a child of the marriage within the meaning of the Divorce Act or until further Order of this Court. 5. AND IT IS FURTHER ORDERED AND ADJUDGED THAT there will be no costs payable by either party. Dated at the City of Yellowknife in the Northwest Territories this 22nd day of September, A.D. 1976.

y^:^y^ C. F. Tallis, J.S.C. \

NO. 6101-00411 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN:

REASONS FOR JUDGMENT BY THE HONOURABLE

A JOHN EDWARD (JACK) KUPEUNA, Petitioner - and -ALICE MARY KUPEUNA, Respondent

MR. JUSTICE C. F. TALLIS