Supreme Court

Lay v. Lay, 2003 NWTSC 7
Date: 20030205
Docket: DV 6101-02934

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:


JAMES MALCOLM CAMERON LAY

     Petitioner


- and -


MAUREEN JANIS LAY

     Respondent


Transcript of the Oral Reasons for Judgment by The Honourable Justice V.A. Schuler at Yellowknife In the Northwest Territories, on February 4th A.D., 2003.


APPEARANCES:

Ms. K. Peterson, QC:  Counsel for the Petitioner

The Respondent was not present or represented:


THE COURT:   On the issue of division of property, I'm going to reserve obviously on that, and I will ask you to file those cases on the costs of sale issue within the next two weeks.

On the question of custody and access, just so that it isn't hanging up in the air although I will refer to it when I do my reasons for judgment on the property issue, Pm satisfied, in light of the fact that the children have been with the Petitioner for approximately five years now, they have been consistently in his care, there is nothing that I heard in the evidence that would cause me any concerns about that or suggest that there is any need to revisit that issue and obviously the fact that they are settled in BC with the Petitioner and that there has to be some good reason to change or disrupt their lives, all of that leads me to conclude that the situation should continue as it is. So I will order that there be joint custody with day-to-day care to the Petitioner. And also because of the difficulties between the parties that have been described and because I think in this particular type of situation, where they are parted by such a distance, it makes sense as well to order that if there is any disagreement between them after consultation on an issue regarding the health, education, welfare, or other activities of the

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children, that the Petitioner will have the final say on that issue.

Now in terms of access, it just occurred to me as I was looking at page 12 of the brief, you have specifically mentioned Christmas and summer and I think then that you referred to “major holidays”. Is there a need o deal specifically with spring break? In other words, the school spring break?

MS. PETERSON:  The Petitioner has indicated, Your Honour, that for the last three years the Respondent has been in British Columbia during the spring break period so it has been less of an issue. Overall, it would be his intention to balance time at spring break with whether or not the children are going up in May and to try and achieve some balance there. So I think in terms of specifying access, it would be our preference to specify one-half of Christmas and July 15th to August 15th and leave a little bit more discretion with respect to other periods.

THE COURT:   That's fine, that seems reasonable in the circumstances. So the access then that I will order for the Respondent will be one-half of the Christmas school break in each year alternating between the first half and the second half of the break. Summer access from July 15th to August 15th each year. Reasonable telephone access

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and access by correspondence and e-mail.

I will also order then that the Respondent acknowledge and agree in writing to the travel schedule to be presented to her by the Petitioner for any period of access and that she acknowledge and agree in writing to that at least 30 days before travel occurs failing which the Petitioner will then have the right to decide whether the access will take place. I don't know if I have worded that very well. In other words, I want to make it so that if she isn't prepared to agree to something 30 days ahead of time - maybe I should say the access will take place on the terms presented rather than whether it will happen at all. That may just cause problems if it is worded that way.

MS. PETERSON:  I think, Your Honour, that the wording that you have suggested, we can work with. I can spend some time with the Petitioner and we will work out what the various potential alternatives are. His concern is that when it is signed off, then she knows and he knows what the dates are and that she will be at the airport to pick them up when they arrive and that she will take them to the airport when they have to go back. And if that doesn't happen in the 30 days, he is then, under your wording, left with the discretion about whether it is going to take place, or if it is going to take

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place under what kinds of constraints or considerations. So if we leave that discretion with him, it may not always be black and white hut it leaves him with at least the decision of whether it is going to occur and if there is some reduced regime that is still going to allow access to happen.

THE COURT:   All right, I will leave it then the way that I had worded it.

Then there will also be, apart from the specified access, such other access that the parties may mutually agree upon, taking into account the school attendance and schoolwork to be undertaken by the children during any absence from scheduled school days.

I will also order that discussions about access arrangements will not occur in the presence of the children.

Now, with respect to the Respondent bearing the costs of her exercise of access, I want to leave both that and the issue of child support and consider those.

One thing that occurs to me, that if I make her responsible for the costs of exercising access, there should probably be some provision whereby she then makes the proposal as to how the access occurs. In other words, if she in fact is able to and

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decides that she will bear the costs of exercising access one Christmas, then it would seem to me that it's likely better to at least give her the opportunity to put together the schedule and the means by which she is going to exercise that access, and I just don't want to run into a problem with the clause that we have just referred to about him making a proposal to her or putting a proposed schedule before her. So as a result of that, I may want to tinker a little with that clause.

MS. PETERSON:  I would just indicate to the Court, in terms of access issues generally and the importance of them, from the perspective of the Petitioner the certainty about arrangements and the orderly making of those arrangement is more important than the financial consideration of the costs of access.

THE COURT:   So what are you saying though, that if she were to propose something that seemed a little bit up in the air and uncertain but she was willing to pay for it that he would prefer to pay and be the one to say this is how it is going to happen?

MS. PETERSON: I mean in theory, because access is a benefit of the children primarily and that's the focus that we should have, the parties should be participating to the extent that's fair to their

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circumstances in any event. If she had reason to think that the arrangements that he was making were unreasonable, in other words you can only see the children if they fly first class and on a fully paid ticket and you have to pay, then that is in fact a means of creating a barrier for access! but there is no evidence that that has ever occurred. In fact, quite to the contrary. In some ways, I'm inclined to suggest to you that her participation in some costs of access should exist no matter who makes the arrangements because the evidence is that he has made the arrangements that are in fact cost effective and allow the children to go there. I suspect, as I indicated in submissions, that if she didn't participate in costs, the children would nonetheless spend time with her. In other words, my clear impression from the Petitioner is he is not going to keep the children from seeing their mother in those circumstances. But there is a certain message in terms of what the responsibility of parents is, both with respect to this and maintenance issues as a whole. The Petitioner can have an entitlement that he doesn't enforce or that he doesn't require, and there might be some merit in that. But if the choice is the certainty of arrangements and his ability to put those in place knowing the activities of the children and getting things organized in a fashion,

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if that has to be compromised in favour of her contributing to the costs of access, then that's kind of a no-brainer for the Petitioner.

THE COURT:   All right. Well, I understand what your position is then.

I will reserve then on those matters - costs of access, child support, and matrimonial property and  I will issue a written decision on them.

Now, is there anything else that I need to cover?

MS. PETERSON:  If we can simply have leave to speak to the issue of costs.

THE COURT:   Yes, you can have leave to speak to that issue then once you have the written decision.

MS. PETERSON:  Thank you.

THE COURT:   If there is nothing further then, we will close court. Thank you.

(AT WHICH TIME THE PROCEEDINGS CONCLUDED)


Certified pursuant to Rule 723 of the Supreme Court Rules.

Lois Hewitt,
Court Reporter

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