Supreme Court

Davis v. Kilpatrick, 2002 NWTSC 73
Date: 20021119
Docket: S-0001-CV-2002000293

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF

the Maintenance Orders (Facilities for Enforcement) Act,
R.S.N.W.T. 1988, c. M-3;

BETWEEN:


TIARRA PATRICIA DAVIS
     Applicant


-and -


MICHAEL DAVID JAMES KILPATRICK
     Respondent


MEMORANDUM OF JUDGMENT


[1] This is an application to confirm a provisional order for child support made on March 28, 2002 by the Honourable Justice P. Martin of the Court of Queen's Bench of Alberta.

[2] The order declares that the Respondent, Michael David James Kilpatrick, is the father of the child, Daniel Alan Glen Michael Davis, born April 29, 1996 and provides that he is to pay to the Applicant for the support of the child, the sum of $606.00 per month starting April 1, 2002. That amount, $606.00, is the amount payable for one child under the Child Support Guidelines made pursuant to the Children's Law Act, S.N.W.T. 1997, c. 14 based on annual income of $70,000.00.

[3] The provisional order also requires that the Respondent pay the monthly sum of $287.00 for child care expenses and that the amounts payable under the order be paid to the Director of Maintenance Enforcement in Alberta.

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[4] The income imputed to the Respondent was based on an estimate by the Applicant, which her counsel at the hearing for the provisional order conceded in submissions was a guess.

[5] The Respondent testified at the confirmation hearing. He does not dispute that he is the father of the child. He testified that he has had difficulty getting the Applicant to agree on his access to the child and he would like an order settling that. However, as this application concerns only whether the provisional order that was made in Alberta should be confirmed, I have no jurisdiction to deal with access issues at this time.

[6] The Respondent testified that in 1999 he worked as an employee for the company Northern Management & Development Ltd. Exhibit 1 is a copy of the Respondent's personal income tax return for 1999, indicating that his employment income for that year was $34,280.00. He had no involvement in that company other than as an employee. At the end of that year, the Respondent and another individual entered into a partnership known as Millennium Construction, which commenced operations in January 2000. They each owned 50 percent of the business. The Respondent's income tax return for 2000, exhibit 2, shows his total income for that year to have been $37,393.05. Financial statements for the partnership for the year 2000 are exhibit 3.

[7] In 2000 the partners incorporated Millennium Construction Ltd., of which the Respondent owns 50 percent of the shares. He is the secretary of the company. The corporate income tax return and financial statements for the company for 2000 - 2001 are exhibits 4 and 5 respectively and exhibit 6 is a copy of the Respondent's personal income tax return for 2001, showing employment income of $33,653.72.

[8] The Respondent indicated that there is no documentation yet available for the year 2002. However, he expects the numbers to be a little higher and that he will be paid a salary in the range of $40,000.00 to $43,000.00. Arrangements have been made through the company's accountant for that purpose. The company pays his rent and utilities where he lives in staff housing, the total of which is $12,000.00 to $13,000.00 per year. I understand from his testimony that this is a rental property owned by Northern Management & Development Ltd., rented from that company by Millennium. The Respondent stated that for similar housing he would have to pay $800.00 to $1000.00 per month.

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[9] I find that the income figures for the past three years have been roughly consistent, taking into consideration the changes in the Respondent's status from an employee of a company in which he held no interest, to a partner in a business, to part owner of his own company.

[10] Having heard from the Respondent and having considered the financial information submitted, I am going to take the median of the amounts projected and find that for the year 2002 his income is $42,500.00, to which should be added the benefit he receives in rent and utilities, which I set at $12,500.00, for total income of $55,000.00. The amount payable based on that income under the Child Support Guidelines is $486.00 per month.

[11] As to the amount for s. 9 (under the territorial legislation) child care expenses, the Respondent testified that he recently visited the child in Alberta and it is his understanding that the child, who is now 6 years old, attends school and is cared for by the Applicant's parents after school. It would appear, therefore, that the situation may have changed since the hearing in Alberta last spring, when the child was going to a day care while not attending kindergarten. For that reason, child care expenses commencing with the school year this past September should be payable only upon the Applicant providing a receipt to the Respondent. I note that the material filed indicates that the child care expenses she has claimed are payable at the beginning of each month.

[12] Assuming that child care expenses are incurred by the Applicant in the amount of $375.00 per month after tax treatment, as set out in the material filed at the provisional hearing in Alberta, and based on the Respondent's income of $55,000.00 and the Applicant's income of $21,600.00, the Respondent's proportionate monthly share of the child care expense is $269.25.

[13] Accordingly, I confirm the provisional order but with the following modifications:

1. the Respondent's income for Guideline purposes is found to be $55,000.00 per year;

2. the Respondent shall pay to the Applicant the base sum of $486.00 per month for the support of the infant child, payable on the first day of April 2002

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and continuing likewise on the first day of each and every following month until further court order;

3. in addition to the base sum, the Respondent shall pay the additional sum of $269.25 per month for child care expenses, payable on the first day of each month, commencing April 1 2002 and continuing on the first day of each and every following month, until further court order, provided, however, that this amount shall be payable from and after September 1, 2002 only upon provision to the Respondent of receipts for the child care expense.

[14] An order should be taken out reflecting the above. As the Respondent was not represented by counsel, I will leave it to legal counsel in the Department of Justice of the Northwest Territories, who forwarded the material to this Court for purposes of scheduling a confirmation hearing, to take out the order. I direct that the Clerk of the Court forward a copy of the filed order, a copy of this Memorandum of Judgment, copies of the exhibits filed at the hearing held before me and a transcript of the hearing, to the Court of Queen's Bench of Alberta.


[S]
V.A. Schuler
J.S.C.

Dated at Yellowknife, NT, this
19th day of November 2002

The Respondent appeared on his own behalf.

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