Supreme Court

Karp v. Karp, 2008 NWTSC 54
Date: 2008 07 30
Docket: S-0001-DV-2008103893

 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

 JACQUELYN MARY KARP
 Petitioner

 - and -


 RONALD ALLAN KARP
 Respondent


 MEMORANDUM OF JUDGMENT

A)  INTRODUCTION AND BACKGROUND

[1] This is an Application for interim sole custody, interim child support, interim spousal support, interim costs, and a restraining order.  The parties were married in 1996 and have one child, J.K. born in 2001.  They separated in May 2008.   On May 8, 2008, the Applicant obtained an Emergency Protection Order.  That Order expired on July 8, 2008.

[2] The Affidavits filed by the parties set out diametrically opposed accounts of the incident that led to their separation, and more generally of events that unfolded during their relationship.  The Applicant alleges that she suffered ongoing physical and psychological abuse during the relationship.  Photographs showing injuries she sustained at the Respondent’s hands are an exhibit to one of her Affidavits.  The Applicant also alleges that the Respondent has behaved inappropriately towards J.K.  She claims that the Respondent is frequently verbally abusive to her in J.K.’s presence, and that he also frequently swears at J.K.  She also alleges one incident where the Respondent spanked J.K. hard enough to leave marks.  A photograph depicting  marks on J.K.’s buttocks  is an exhibit to one of her Affidavits.

[3] The Respondent alleges that he was the one who was subjected to physical, verbal and mental abuse from the Applicant.  He said that during the whole of the relationship there was only one instance where he was the one to hit her first.  With respect to J.K., the Respondent describes himself as a loving father.  He acknowledges having spanked J.K. on one occasion and says he deeply regrets it.  He denies any other inappropriate conduct towards his son.

[4] The Applicant is self-employed.  She has sworn and filed a Financial Statement that shows a monthly deficit of $1,643.00.  She deposes that her taxable  income for the year 2007 was $22,218.00.  The Respondent disputes these figures, and claims that her income is higher than that.  He has filed and sworn his own Financial Statement, which shows a monthly surplus of $666.95.  He has also filed copies of his income tax returns showing total incomes of $74,737.84, $75,539.00 and $81,021.82 for the years 2005, 2006 and 2007 respectively.  He deposes that in October 2007 he lost his councillor’s job, and that as a result, there has been a decrease of $750.00 per month in his income.

[5] This Application was first before the Court on June 19, 2008.  On that date, an Interim Order was issued upon representations being made to the Court by the Applicant’s counsel.  Those representations were that the Respondent had retained a lawyer who is not a member of the Law Society of the Northwest Territories, that this lawyer was in the process of obtaining a restricted appearance certificate for this case, and that this lawyer had indicated that the Respondent was in agreement with the matter being adjourned to July 24, and for an Interim Order with certain conditions to issue in the meantime.  On the basis of those representations, the Court issued an Interim Order.

[6] The Interim Order provided that J.K. would be in the Applicant’s sole custody, that the Respondent would have supervised access to J.K. as could be agreed to by the parties, that the Respondent would continue to pay the Applicant “sufficient funds to maintain the necessary household expenses that have been paid from time to time since the separation”, that he would pay $779.00 monthly in child support, and that he would pay 77% of any extraordinary expenses for J.K..  The Order also included various terms restraining the Respondent from having contact with the Applicant.

[7] In his Affidavit the Respondent denies ever giving instructions to counsel on the issues of custody, access, and the restraining order prior to the June 19 appearance.  He is now represented by another counsel.


[8] Whatever happened between the Respondent and his former counsel, or between the Applicant’s counsel and the Respondent’s former counsel, it has no bearing on my decision at this point.  It is apparent from the transcript of the June 19 proceedings that the Order made that day was made on an interim basis only, with the understanding that all the issues would be revisited on July 24.  I have considered all matters afresh, on the basis of all of the evidence that has been filed to this point.  Not all that evidence was before the Court on June 19, 2008.

B)  ANALYSIS

1.  Custody and Access

[9] Although the Respondent has filed an Answer and Counter-Petition in the divorce proceedings where he is making a claim for sole custody of J.K., he has not filed an application seeking interim custody, and did not seek custody during submissions on July 24.  The evidence of the Applicant that she has been the primary caregiver to J.K. since his birth is not contested.  Under the circumstances, it is appropriate to have J.K. remain in her sole custody on an interim basis.

[10] The Respondent wants unsupervised access to J.K.  He states that he has had great difficulty is seeing J.K. since the Emergency Protection Order was issued.  That Order provided that the Respondent could only have supervised contact with J.K, on appointment through social services.  The Applicant acknowledges that there have been difficulties, in part because the parties had problems agreeing on who could supervise the access; she claims that things have improved since the Respondent’s current counsel has become involved in this matter.

[11] Decisions about custody and access have to be made, at all stages of the proceedings, on the basis of what is in the best interests of the child.  Both parties allege that the other has physically and verbally abused them in front of J.K.  Each allege that the other has engaged in conduct that can only be described as deplorable.  Of course, at this stage, these allegations have not been tested through cross-examination; I have not seen or heard the parties tell their version of events.  I am obviously not in any position to make findings of credibility, nor firm findings of facts, on the basis of affidavits.  This makes assessing what is in the best interests of J.K. very difficult.

[12] That being said, it is uncontested that at least on one occasion, the Respondent struck J.K. with sufficient force to leave marks on his buttocks, which are clearly visible on the photographs filed.  The evidence is silent as to when this incident occurred, but it is of concern.

[13] Under the circumstances, and bearing in mind the interests of J.K. are paramount, not the interests of either of his parents, I am not prepared to lift the requirement for the access to be supervised at this time.  I will, however, set a schedule for specified access in the hopes that it will facilitate regular contact between J.K. and the Respondent.  It may also assist with the coordination and planning of the visits with the people who are supervising the access.

[14] The Applicant opposes overnight access but in my view, any concerns in this regard can be alleviated if the access is supervised.  To the extent possible in these difficult circumstances, J.K. should be able to maintain a meaningful connection with both his parents, and overnight access is one way of achieving that.

[15] The Applicant has requested that the access be subjected to notice conditions. This is a reasonable request.  It is also in J.K.’s best interests.  J.K. should know ahead of time when he is going to spend time with the Respondent and in particular, when he will spent the week-end with him.  I will therefore make the access subject to a notice requirement.

2.  Child Support

[16] The amount of child support ordered on June 19 corresponds,  under the Child Support Guidelines, to annual income of $85,000.00.  The evidence of the Respondent, which is not contested, is that his income is less than that.  His annual income in 2007 was $81,021.82.  He deposes that for most of that year, he had a council job that earned him $750.00 per month.  He lost that job in October 2007.  If he received this monthly supplement to his income from January to September 2007, it adds up to $6,750.00.  Deducting that amount from his total 2007 income brings his income to $74,271.00, which is very close to what his reported income in 2006 was ($75, 539.00).  Bearing in mind that these calculations are not exact, in my view, it is appropriate to calculate the Respondent’s child support obligations on the basis of annual income of $76,000.00.  The percentage of extraordinary expenses he will be responsible for should also be adjusted accordingly.


3.  Spousal support

[17] The Applicant seeks an Order for interim spousal support in the amount of $1,000.00 per month.  Paragraph 15.2(4) of the Divorce Act sets out the factors that must be examined in deciding whether spousal support should be ordered.  Paragraph 15.2(6) sets out the objectives of such orders.  These provisions apply to applications for interim spousal support orders.  The Court must consider the means, needs, and circumstances of each spouse.  Spousal support orders are intended, among other things, to recognize advantages or disadvantages to the spouses arising from the marriage or its breakdown, relieve economic hardship arising from the breakdown of the marriage, and promote self-sufficiency.

[18] The Respondent asks that the question of spousal support not be dealt with until the parties have exchanged complete financial information.  This is a reasonable request, especially considering that the Respondent contests the financial information provided by the Applicant.

[19] I would add that at this stage, it seems to me that the evidence before the Court may fall short of what is required to enable a proper assessment of the considerations set out in Paragraphs 15.2(4) and (6) of the Act.  Finally, if the financial status of the party remains a contested issue after the exchange of full financial disclosure, there may be a need for viva voce evidence to be adduced on the contested points to enable the Court to make findings.

4.  Utilities and Household expenses

[20] The Applicant seeks an order whereby the Respondent would be compelled to continue paying for essential utilities and household expenses.  The Respondent agrees to pay some of these expenses, but disagrees that he should have to pay for the second phone or the reconnection of the satellite television, which he has had cut off since separation.  The Applicant points out that the only person who has suffered from the cancellation of the satellite television subscription is J.K.  She also argues that she needs two phones because one of them is used for the internet and for her business.

[21] What the Respondent has said he considers reasonable as far as monthly utility expenses adds up to approximately $700.00.  Reconnecting the satellite television would cost $500.00 as a one time connection fee, with ongoing monthly costs of $60.00.

[22] All I will say about the question of the satellite television is that to the extent possible, a child’s standard of living and general living conditions should be affected as little as possible by his or her parents’ separation.  For a child that age who is used to having access to cable or satellite television, losing that access is, I am sure, difficult.  I am also mindful, however, that it is also part of reality that maintaining two households inevitably costs more than maintaining one, and unfortunately, adjustments sometimes have to be made that will impact on the child.  One can only hope that all involved strive to make decisions  keeping the best interests of the child as a primary consideration.

[23]   Based on the evidence before me at this time, I conclude that it is reasonable to require the Respondent to pay a monthly sum of $800.00 for the maintenance of household and utilities expenses.

5.  Interim Legal Costs

[24] The Applicant is asking for an interim legal costs order in the amount of $2,500.00.  She says that the difference between her income and the Respondent’s income  places her at a serious disadvantage, and that she will not be able to continue with this litigation without a costs order.  The Respondent opposes this request.

[25] What the Applicant seeks is an exceptional measure, as the issue of costs is generally addressed at the end of court proceedings, usually when the Court has made its decision on the merits of the case.  However, there are circumstances where an order for interim costs can be made.


[26] The Supreme Court of Canada has, in recent years, examined the principles that govern this type of application and set out three criteria that must be considered: (a) the claimant must be impecunious to the extent that without such an order, the claimant would be deprived of the opportunity to proceed with the case; (b) the claimant must establish a prima facie case of sufficient merit to warrant pursuit; (c) there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.  British Columbia (Minister of Forests) v. Okanagan Indian Band [2003] S.C.R. 371, at para.36.  Those principles were applied in Deans v. Thachuk (2005), 261 D.L.R. (4th) 300 (Alta Ca).

[27] The second criterion, I think, is met.  The Applicant has established a prima facie case of sufficient merit to warrant pursuit.  One could say that following separation, save in exceptional circumstances, a parent that initiates custody proceedings would more often than not meet this criterion.  I have concerns, however, with respect to the first and third criteria.

[28] With respect to the first criterion, the evidence does suggest a significant difference between the parties’ incomes, but the Respondent, as I have already stated, claims that the Applicant’s income is higher than what she asserts.  More importantly, there is no evidence that the Applicant, whatever her income is, will be deprived of  the opportunity to proceed with her case if an interim costs order is not granted.  People of very very modest means regularly appear before the Courts in the Northwest Territories with the assistance of lawyers who are funded by the Legal Aid plan.  I cannot simply assume that an income in the lower range means she would be deprived from presenting her case.

[29] I am also not convinced that the third criterion is met.  Unfortunate as the circumstances revealed by the evidence are, they are not particularly uncommon, nor it is uncommon for there to be a disparity in the income of parties involved in family law disputes.  A disparity in income is not, in and of itself, sufficient to justify an interim costs order.  At this early stage in the proceedings, it has not been demonstrated that the circumstances of this case are so  exceptional as to justify the exercise of the extraordinary power to order interim costs.  This finding will not preclude the Applicant from renewing her application at a later stage in the proceedings.  But at this stage, I do not find that the stringent test set out by the jurisprudence is met.

6.  Restraining Order


[30] The Applicant alleges that the Respondent’s conduct during their relationship, and since their separation, has caused her concerns for her safety and she wants him restrained from contacting her.  The Respondent denies much of the conduct that underlies the request for a restraining order.  However it seems clear that there is significant animosity between the parties.  During the submissions, the main reason advanced by the Respondent for wanting the restraining order lifted was that it might facilitate access, particularly if he was successful in his request that the access no longer be supervised.

[31] As I have decided that the access should continue to be supervised, and given the level on conflict between the parties, it continues to be desirable to prevent the Respondent from having direct contact with the Applicant.  Although the Respondent contests the Applicant’s account of what transpired in their relationship, it is beyond dispute that the relationship was a tumultuous one.  In my view there is sufficient evidence to justify maintaining the restraining order at this point.

[32] This is also consistent with J.K.’s best interests.  It is not in his best interests to be the witness of any more flare ups between his parents.  The one fact that the parties seemed to agree on is that J.K. has been the unfortunate witness of various incidents between them.  The fact that this is all too common when people separate does not make it right.  J.K. should not have to witness, let alone have to intervene to stop arguments of physical altercations between his parents.  No child should.  If the parties have direct contact, it increases the possibility for further problems between them.  If their direct contact is in the context of organizing some of the access, it increases the risk of J.K. witnessing further problematic interactions between them.  This is another reason why it is advisable, in my view, to maintain the restraining order for the time being.

C)  CONCLUSION

[33] As I understood the submissions of counsel, the parties are in agreement that it may be helpful to have this matter spoken to in Chambers in a few months, so I will adjourn this matter to a date certain.

[34] An Interim Order will issue in the following terms:

1.   The Applicant will have sole interim custody of J.K.

2.  The Respondent will have supervised access to J.K., as may be agreed upon  by the parties, and, failing such agreement, on the following terms:


(a)  Every Tuesday and Thursday, from 5:00 p.m. to 8:30 p.m., the first of these visits to be Tuesday, August 5, 2008;

(b)  Every second week-end, from Friday at 7:00 p.m. to Sunday at 7:00 p.m., commencing on Friday, August 8 and every second week-end thereafter;

(c) The Respondent shall notify the Applicant, 24 hours before a scheduled time of access, as to whether or not he will exercise the access; the Respondent shall effect this notification through the person who is expected to supervise the access;

(d)  If the Respondent fails to notify the Applicant in accordance with paragraph (c), the Applicant may refuse access.

3.  The Respondent shall make monthly payments of $701.00 in child support, commencing on August 1, 2008, and every first day of the month thereafter.  The child support is based on an annual income of $76,000.00.

4.   The Respondent’s share of extraordinary expenses for J.K. will be calculated on the basis of his annual income  being $76.000.00 and on the Applicant’s annual income being $22,218.00.

5.  The Respondent shall make monthly payments of $800.00 to the Applicant for the maintenance of utilities and other household expenses, commencing on August 1, 2008, and every first day of the month thereafter.

6.  The application for interim costs order is dismissed.

7.  The application for interim spousal support is adjourned sine die, pending completion of the full reciprocal disclosure of financial information, and can be brought back on ten days’ notice to the Respondent.


8. The Respondent shall not communicate with the Applicant.  Specifically, he will not speak to her, telephone her, or write to her.  He shall not communicate with her through third parties except through counsel, or for the purposes of arranging the supervised access as set out in this Order.  The Respondent  shall not come within one hundred feet of the Applicant’s place or residence, work, or schooling.

9.  This matter will be spoken to September 18, 2008, at 10:00 a.m.

[35] Counsel are to prepare a Formal Order and submit it to the Clerk of the Court for filing.



L.A. Charbonneau
        J.S.C.

Dated at Yellowknife, NT, this
30th day of July, 2008

Counsel for the Petitioner:  James R. Scott
Counsel for the Respondent: Abdul Q. Khan


S-0001-DV-2008103893



IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES



BETWEEN:

 JACQUELYN MARY KARP
 Petitioner

 - and -


 RONALD ALLAN KARP
 Respondent





MEMORANDUM OF JUDGMENT OF THE
HONOURABLE JUSTICE L.A. CHARBONNEAU