Supreme Court

Rocher v. Rocher, 2008 NWTSC 62
Date: 2008 08 18
Docket: S-0001-DV-2007103827

 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

 ROBERTA JEANETTE ROCHER
 Petitioner

 - and -


 JOHN DAVID ROCHER
 Respondent

 MEMORANDUM OF JUDGMENT


[1] In this application, the Petitioner seeks interim sole custody of the parties’ 11 year old daughter, C., reasonable access for the Respondent conditional on her right to refuse access if he has been drinking, ongoing and retroactive child support and costs.  The Respondent seeks an order for shared parenting and opposes the request for ongoing and retroactive child support and costs.

Background

[2] The parties separated two years ago at the end of August 2006 after a 20 year marriage.  They have one child, C., an 11 year old girl.  For the most part, C. has been in the Petitioner’s care since the separation.  From April to August of 2007, the parties tried a regime whereby C. spent two weeks with each of them on an alternating basis.  That regime did not work out and the parties do not agree on why that was.


[3] There is a contradiction in the evidence as to whether C. lived with the Respondent for a month or more earlier this year.  The Respondent says that in early February this year the Petitioner told C. to leave her home and sent her to live with him.  As at February 27, he deposed that C. had not returned to the Petitioner’s home.  In her reply affidavit sworn April 30, 2008, which is the most recent affidavit before me on this application, the Petitioner does not address that allegation but does say that in February 2008 she was out of town and had to arrange for her mother to come to Yellowknife to care for C. as the Respondent refused to do so.  An affidavit sworn at a later date by the Respondent was objected to by the Petitioner because of late service and I allowed the objection and have not taken that affidavit into consideration.  The result is that C.’s living situation from February to date was never made clear, although both parties appear to accept that C. lives for the most part with the Petitioner.

[4] The Petitioner commenced these divorce proceedings in July 2007.  The Respondent filed a Demand of Notice but has not filed a Counter Petition or a Notice of Motion.  Therefore, there is no application by him before the Court for custody of C.  In his affidavit, however, the Respondent indicates that he would like to have C. live with him on a rotational basis in lieu of paying child support, which he says he cannot afford due to other expenses.

[5] As is frequently the case on interim applications, the evidence before the Court is in the form of affidavits only, untested by cross-examination.   The parties disagree on a number of things for which there is no independent evidence so credibility is a significant issue, one that cannot be decided on the basis of affidavit evidence.  In deciding this application, I will focus mainly on the evidence that is not in dispute.

Custody

[6] An interim custody order is intended to govern during the period of time between the making of the order and the trial, when the issue of permanent custody will be addressed.  The test on an interim application is normally what temporary living arrangements are the least disruptive, most supportive and most protective for the child: Kalaserk v. Nelson, 2005 NWTSC 4.  The overriding principle to be applied is the best interests of the child, which must prevail over the parents’ wishes or what the parents think is fair.

[7] The child has been mainly in the care of the Petitioner.  Although the parties disagree on why the attempt at a two week rotation failed, the fact is that it did fail.  The affidavits reveal a level of acrimony between the parties that provides no prospect that shared parenting is any more likely to be successful at this time.

[8] The Petitioner alleges a long history of violent behaviour by the Respondent and ultimately an assault on her which resulted in, or at least contributed to, the separation.

[9] The Respondent says that any violence in the relationship was reciprocal and describes the Petitioner as “giving as good as she got”.  It is not clear whether by that he means she assaulted him or she fought back when he assaulted her.  He admits that in the final incident he grabbed and shook the Petitioner and threw her to the floor.

[10] The Petitioner also alleges that the Respondent has threatened her and others close to her since the separation.  Although the Respondent denies the substance of some of the threats alleged, he does admit to threatening to get revenge on her and threatening to burn down her family’s cabin.  He does not deny threatening to burn down the business premises of the man the Petitioner is dating.

[11] In April of 2007, the Petitioner obtained an emergency protection order against the Respondent prohibiting him from communicating with her or going to her home.  There is no evidence before me as to the reason why the order was sought.  The order was made on April 3, 2007 for a period of 30 days, which coincides with the first month of the time period, April to August 2007, when the Petitioner says the parties were trying a shared custody arrangement.  One might infer that despite the order, the Petitioner was willingly in communication with the Respondent.  In these circumstances and without any information as to the basis for the order, the fact that an emergency protection order was obtained is of no assistance on the issues before me.

[12] The assault and the threats admitted to by the Respondent are of great concern.  Violent behaviour towards a spouse is a breach of trust and is relevant to the ability of a person to act as the parent of a child, with whom there is also a relationship of trust.  It is also beyond doubt that violence perpetrated by one spouse on another in the home is likely to have a detrimental effect on a child.  Thus, the Respondent’s admitted conduct toward the Petitioner is relevant to his ability to act as a parent and puts it in question: s. 16(9) Divorce Act.

[13] Almost all of the other allegations made by the Petitioner against the Respondent are contradicted by the Respondent and vice versa.  Since they involve issues of credibility, I can make no findings at this stage of the proceedings.  However, the Petitioner’s affidavit does make serious allegations about the Respondent’s lack of judgment and reckless behaviour when drinking.  If what she says is true, it gives rise to concern about the child’s safety when in the care of the Respondent.  She also alleges that he has used violence on C., which he denies, but which is a serious allegation the Court cannot simply ignore when trying to determine what is in the best interests of the child.

[14] I am mindful that the Respondent has also made allegations about the Petitioner, among them drug use and locking C., an 11 year old, out of her home.  He also describes the relationship between the Petitioner and C. as “volatile”.  However, he cites no incidents where C.’s safety was affected.

[15] Because it appears that C. has been mainly in the care of the Petitioner and bearing in mind the Respondent has admitted to using violence in relation to the Petitioner, in my view it is in C.’s best interests that she be in the sole custody of the Petitioner and live with her on an interim basis.

[16] The Respondent will have reasonable access on reasonable notice to the Petitioner.  In light of the allegations referred to above, access will be subject to the condition that the Petitioner may deny access if it appears to her that the Respondent is under the influence of alcohol.

[17] The Respondent asks in his affidavit that the Petitioner be restricted from the use of marijuana while C. is in her care.  I need not impose such a restriction.  I am sure that the Petitioner is aware that possession of marijuana is a criminal offence and that she acts illegally if she has it in her possession.  In effect, the restriction sought by the Respondent already exists.

Child Support

[18] The Petitioner seeks to have income of $125,000.00 per annum attributed to the Respondent and ongoing child support calculated on that basis, which under the Child Support Guidelines is $1115.00 per month.

[19] The evidence is that the Respondent worked for several years as a diamond driller, earning an income substantially more than he earns now.  He says that he is no longer able to manage the physical demands of that work and since about April 2007 has worked in his brother’s telecommunications business.  The Petitioner questions his claim that he can no longer work as a diamond driller.  There being no other evidence, that is an issue that cannot be resolved on affidavits.

[20] The Respondent’s gross 2007 income from employment appears to have been approximately $65,000.00 from the material he has provided.  The Petitioner asks that certain amounts be added to that, specifically rental income and money from selling copper and firewood, which she says he does not declare for income tax purposes.

[21] The property from which the rental income was obtained has been sold, as conceded by the Petitioner, so that amount should not be added to calculate the Respondent’s income for purposes of ongoing child support.  The Petitioner has provided a recent photograph of some copper pipes on the Respondent’s property and a copy of a timber cutting permit in the Respondent’s name valid for a year commencing April 12, 2007; however, the Respondent denies that he earns any income from those ventures at this time, although concedes that he did in the past.

[22] Whether the Respondent is under-employed and whether he does receive income from businesses he operates on the side are issues in dispute that involve credibility.  Accordingly, I leave those issues for trial.

[23] The obligation to pay child support takes priority over other expenses such as the maintenance of property referred to in the Respondent’s affidavit.  For purposes of the interim order, child support will be payable by the Respondent based on income of $65,000.00 per year, which results in a monthly payment of $603.00, commencing August 1, 2008, subject to adjustment at trial.  The Respondent will also pay his proportionate share of s. 7 expenses based on that income figure.

Retroactive child support

[24] The Petitioner seeks child support retroactive to the date of separation.  She says that within three weeks of the separation she spoke to the Respondent about child support but he did not pay anything.  She says she asked again for child support in September 2007 but the Respondent refused to pay and told her the lawyers could fight it out.

[25] An interim interim order was made on December 20, 2007 in the absence of any financial information from the Respondent.  That order provided that he pay child support in the amount of $1000.00 per month, subject to adjustment upon the filing of his financial information.  His financial information was filed at the end of February 2008.  Counsel advised that only two payments have been received pursuant to the order, both very recent and by way of garnishment.

[26] The Respondent says that for some months after the separation, the Petitioner had control of the parties’ joint accounts and regularly used them for her own purposes.  He says that shortly before the separation he deposited $27,700.00 from a one-time sale of scrap copper into one of the accounts.  The Petitioner does not say anything about whether she withdrew money from the joint accounts and neither party provided any bank statements or other information about the accounts.


[27] The Respondent also says that any rental income should be reduced by the expenses incurred to maintain the property.  He also disputes the extent to which he earned income from the sale of copper and firewood.

[28] Clearly there are issues relating to the amount of income earned by the Respondent, the use by the Petitioner of the joint accounts and the calculation of income from the rental property.  Neither party produced sufficient evidence on these issues and their resolution may also be affected by findings of credibility. These are reasons against resolving the issue of retroactive support on an interim basis.

[29] It is certainly arguable that in accordance with the test prescribed by the Supreme Court of Canada in D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, retroactive support back to the date of the separation should be ordered in this case.  However, except as indicated below, in my view it is preferable to leave that entire issue to the trial judge because of the issues referred to above.

[30] The Petitioner asks that retroactive child support be dealt with now because of the sale of a property from which proceeds are being held in trust.  Because of the Respondent’s failure to date to provide child support voluntarily, I have decided to make an order that some retroactive support be paid now, while preserving some of the money held in trust pending a determination at trial as to whether further retroactive support is payable.

[31] There is no question that the Petitioner should have received child support from the date of the interim interim order, which the Respondent has never applied to set aside or vary, and that it should have been at a minimum in the amount of $603.00 per month based on the Respondent’s reported 2007 income.  Therefore, I order retroactive child support for the months January to July 2008 (7 x $603.00) in the amount of $4221.00, subject to adjustment at trial should the Respondent be found to have a greater income.  The amount of $4221.00 less any amounts received by the Petitioner pursuant to the order of December 20, 2007 is to be paid to the Petitioner from the proceeds in trust.

[32] My calculation as to the amount to remain in trust pending any final order made after trial is as follows.


[33] The parties separated at the end of August 2006.  For the remaining four months of that year, child support would likely be payable based on at least the Respondent’s declared 2005 income of $77,689.00.  The child support payment under the Guidelines in effect at that time and based on that amount is $660.00 per month, which gives a total for four months of $2640.00.

[34] For the year 2007, child support payments would likely be based on the Respondent’s declared 2006 income of $96,186.00 plus the $27,700.00 he says he  earned from the sale of copper shortly before the separation.  On the total of $123,886.00, child support would be payable in the amount of $1106.00 monthly.   While that amount may be subject to a decrease because of the five month shared custody regime, it may also be subject to an increase if the Respondent is found to have had more income.  The amount to be held in trust is (12 x $1106.00)$13,272.00.

[35] The total to be held in trust pending trial is therefore $15,912.00.  I want to make it clear that the amounts referred to above are not final but are simply estimates  of what the Respondent might be found to owe in retroactive child support.  It will be up to the trial judge to make the final decision after hearing the evidence.

Costs

[36] Success on this application has been somewhat divided.  I order costs in the cause.

[37] In summary, an order will issue as follows:

1.  the Petitioner will have interim sole custody of C., who will live with the Petitioner;

2.  the Respondent will have reasonable access on reasonable notice.  The Petitioner may refuse access if it appears to her that the Respondent is under the influence of alcohol;

3.  the Respondent will pay interim child support in the amount of $603.00 per month commencing August 1, 2008, based on income of $65,000.00, subject to adjustment at trial.  The Respondent will also pay his proportionate share of s. 7 expenses based on that income figure;


4.  the Respondent will pay retroactive child support for the months January to July 2008 in the amount of $603.00 per month for a total  of $4221.00, subject to adjustment at trial.  The amount of $4221.00 less any amounts received by the Petitioner pursuant to the order of December 20, 2007 is to be paid to the Petitioner forthwith from the proceeds held in trust;

5.  the amount of $15,912.00 from proceeds otherwise payable to the Respondent is to be held in trust pending a determination at trial as to any additional retroactive support payable by the Respondent;

6.  costs of this application will be in the cause.




V.A. Schuler,
     J.S.C.

Dated at Yellowknife, NT, this
18th day of August, 2008



Counsel for Petitioner:  Elaine Keenan Bengts
Counsel for Respondent:  D. Jane Olson


S-0001-DV-2007103827

 IN THE SUPREME COURT OF THE
 NORTHWEST TERRITORIES


BETWEEN:

 ROBERTA JEANETTE ROCHER

 Petitioner

 - and -



 JOHN DAVID ROCHER

 Respondent


_________________________________________

           MEMORANDUM OF JUDGMENT OF
 THE HONOURABLE JUSTICE V.A. SCHULER
_________________________________________