Supreme Court
Decision Information
Summary: Applicant father and respondent mother cohabited for approximately 15 months. Father applies to court for interim custody of his child who is currently with the mother. Mother of this child is also mother to another child presently in her care. Mother seeks interim custody, child support and spousal support. Father is recovering from a stroke, is receiving unemployment insurance, and will be going to Edmonton for a heart operation from which it is not known how long he will need to recover. Father denies ever intending to step into the place of the other child's natural father. Mother is actively taking steps to deal with the periodic violence between her and the applicant, and child protection workers are monitoring the current plan of care arrangement. Court determines that it is in the best interests of the child that mother has interim custody of their child and that the father pay interim child support payments for his child based on his income from unemployment insurance income and the child support guidelines. Whether or not this father stood in the position of a parent to the mother's other child and whether or not there were economic advantages and disadvantages arising from the relationship of the parties that would entitle the mother to spousal support are issues to be determined at trial. That they had a child together is not alone determinative of the entitlement to spousal support
Abstract: Application and cross-application for custody, child support and spousal support
Decision: Interim custody of both children granted to mother, applicant father to have reasonable access to his child. Applicant father to pay interim child support as per guidelines for his child only. Permanent custody and remaining issues to be decided at trial
Subjects: Family law - Children - Custody and access
Family law - Maintenance - Entitlement
Decision Content
Chirpilo v. Lockhart, 2000 NWTSC 68
Date:
Docket:
BETWEEN:
WAYNE NICHOLAS CHIRPILO
Applicant
- and -
ELIZABETH LOCKHART
Respondent
MEMORANDUM OF JUDGMENT
[1] The applicant is the father of Sylvia (born March 17, 2000). The respondent is the mother of Sylvia as well as Bianca (born September 3, 1992). The applicant has applied for custody of Sylvia. The respondent has cross-applied for custody of Sylvia and Bianca, child support for both children, and spousal support. For the reasons that follow I have decided to issue an order:
(a) granting interim custody of both children to the respondent;
(b) granting the applicant reasonable access to Sylvia (upon such terms and at such times as the parties may agree upon); and
(c) directing the applicant to pay interim child support for Sylvia only.
All other matters, including the question of permanent custody of Sylvia, are left to be determined at trial.
Interim Custody:
[2] The child Sylvia was born during a very short cohabitation period between the parties (June 1999 to August 2000). I have no doubt that, prior to the respondent s departure from the applicant s home, both parents cared for her needs. I also have no doubt that there were antagonisms between the parties marked by periodic violence. It is apparent that the respondent has serious difficulties to deal with but she is currently obtaining assistance in that regard (both from the Status of Women Council and the child protection workers who are monitoring the Plan of Care arrangement). I also note that the Plan of Care arrangement will be reviewed both in late November and next February (and, I trust that this time the applicant will have some input into that review).
[3] The situation with the applicant is a little more uncertain at this time. He is recovering from a stroke and will be going to Edmonton for a heart operation. It is not known how long he will need for his recuperation or what his circumstances will be during and after that time.
[4] Considering the current situation, I am satisfied that it is in Sylvia s best interests that she remain in the custody of the respondent during this interim period. The applicant has made no claim for custody of Bianca so the interim custody order will include her as well. I am hopeful that the parties, with the assistance of counsel and the child protection workers, can work out suitable access arrangements. If they cannot then directions may be sought from the court.
Interim Child Support:
[5] There is no question that the applicant has an obligation to support Sylvia. He currently receives unemployment insurance. I will leave it to counsel to determine the applicant s income (extrapolated to a 12-month period) and then set the appropriate monthly support figure based on the territorial Child Support Guidelines. The monthly payments are to commence November 15, 2000. If the applicant s income changes (should he start to receive disability insurance for example) the child support figure should be adjusted accordingly.
[6] With respect to support for Bianca, this requires a determination as to whether the applicant stood in the position of a parent to her. In an early affidavit the applicant stated in reference to his relationship to Bianca during the parties cohabitation: It was not very different from having my own daughter. Subsequently, and after the respondent advanced this claim for support for Bianca, the applicant backtracked. He stated that it was never his intention to step in the place of Bianca s natural father.
[7] This is an issue that will require far more evidence to resolve. I also note that the respondent has a support order for Bianca s benefit against her natural father. Steps should be taken to enforce that. Therefore I decline to include Bianca in the interim support order.
Interim Spousal Support:
[8] The respondent s counsel argued in favour of an interim support order on the basis that a spousal relationship was created by the fact that the respondent bore the applicant s child. Whatever may be the merits of that argument, I am not convinced that even a preliminary determination of the respondent s entitlement to support can be made on the basis of the evidence presently before me. When I consider the definition of spouse in s.1(1) of the Family Law Act, S.N.W.T. 1997, c.18, as well as the requirement to assess the economic advantages and disadvantages arising from the spousal relationship (if there was one), as per s.15(2) of the Act, there is obviously a need for much more detailed evidence and substantive argument. Hence this issue should be deferred to a trial.
[9] The terms of the interim order were outlined above. Costs of this interim proceeding will be left to the discretion of the trial judge.
J.Z. Vertes,
J.S.C.
Dated at Yellowknife, NT, this
3rd day of November 2000
Counsel for the Applicant: James D. Brydon
Counsel for the Respondent: D. Jane Olson
CV 08982
IN THE SUPREME COURT OF
THE NORTHWEST TERRITORIES
BETWEEN:
WAYNE NICHOLAS CHIRPILO
Applicant
- and -
ELIZABETH LOCKHART
Respondent
MEMORANDUM OF JUDGMENT OF
THE HONOURABLE JUSTICE J.Z. VERTES