Supreme Court

Pynn v. Pynn, 2009 NWTSC 57
Date: 2009 08 19
Docket: S-0001-DV-2001-103288

	IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

	SHEILA DIANE PYNN
	Petitioner

	- and -


	DARREN EUGENE PYNN
	Respondent

	MEMORANDUM OF JUDGMENT


[1]	This matter was brought on as an application by the Petitioner for variation of an interim order made by my colleague Cooper J. on March 16, 2009.

[2]	Some of the background is set out in the Memorandum of Judgment of Cooper J. filed March 16, 2009.  The parties were divorced in 2002 but only interim orders were made respecting custody of the children and matters incidental to that.

[3]	The order made on March 16 is also an interim order.  It provides that the parties continue to have joint custody of their teenage children, Robyn and Brian, that the Petitioner has de facto care of Robyn and the Respondent de facto care of Brian and that no child support is payable.

[4]	At the time of the March 16 order, the possibility that Brian, now 15 years old, might move to live with the Petitioner in Alberta was a live issue as Cooper J. specifically referred to it in paragraph [15] of the Memorandum of Judgment.  And in fact that is exactly what came to pass in June 2009.


[5]	Notwithstanding the hope expressed by Justice Cooper that the parties would arrange for a smooth transition in the event that Brian moved to live with the Petitioner, the transition was not smooth at all, at least according to the detailed version of events set out in the Respondent’s affidavit.  However, as the Respondent indicated in Chambers that he now accepts and agrees that Brian will reside with the Petitioner at least until he finishes high school, I need not comment any further on the circumstances of the move for purposes of this decision.

[6]	Since only interim orders have issued in this matter and since the parties, who are both self-represented, each indicated in Chambers on August 13 that they do not wish to proceed to a trial, the order I issue will be a Corollary Relief Order, in other words a final order, subject to variation only in accordance with the provisions of the Divorce Act.

[7]	The Petitioner seeks variation of the March 16 order to reflect the change in Brian’s residence.  The Respondent, on the other hand, sought the inclusion of several conditions which he had set out in a proposed consent order and provided to the Petitioner in early July of this year.  After having reviewed the various issues with the parties during the Chambers application, I have decided that the Corollary Relief Order will issue in the following terms for the following reasons.

[8]	The parties have had joint custody of the children since separation.  Although the parties have had problems communicating, I will continue the joint custody regime.

[9]	The two children will reside with and be in the day to day care of the Petitioner.  The Respondent will have generous and liberal access to them upon reasonable notice to the Petitioner.  The Petitioner will permit the children to contact the Respondent as set out in the Corollary Relief Order.


[10]	The Petitioner indicated that in light of the increased cost to the Respondent of exercising access, she is content that child support be calculated on the Respondent’s basic salary excluding his Northern Living Allowance.   This seems reasonable in the circumstances.   Accordingly, based on the Respondent’s financial information submitted to the Court, his annual income for purposes of calculation of child support is $69,256.30 , based on which the monthly amount of support for two children under the federal Child Support Guidelines is $1,044.00.  That amount will be payable on the first day of each month, commencing August 1, 2009.  In my view that date is appropriate because of the abruptness of Brian’s move and the short notice given to the Respondent.

[11]	Child support will be payable in the case of each of the children until such time as the child is no longer considered a “child of the marriage” as that term is defined in the Divorce Act.  The wording set out in the Corollary Relief Order will be expanded to make reference to post-secondary education.

[12]	The Respondent sought some restrictions on the Petitioner’s use of the child support he pays and a requirement that she not charge the children room and board or for other expenses or items while she is receiving child support.  The Petitioner indicated that she does not charge the children room and board but does require that they pay their own cell phone expenses.  Generally speaking, and in the absence of evidence that a parent has spent child support money for purposes unconnected to the child, it is left to the parent receiving the child support to determine how to spend it.  The Court does not normally specify what items the recipient is or is not to use the payments for or how the general expenses of raising the child are to be covered.  There is no evidence before me that justifies the making of an order restricting the Petitioner’s ability to use the child support or deal with expenses.

[13]	The Respondent also sought a condition that the Petitioner pay child support to the children if they reside outside of her home while attending post-secondary education and the Respondent is still paying support.  Whether and in what form the Petitioner would be obligated to provide support to the children will depend on the children’s circumstances at the time.   There are so many variables that it is impossible to provide for them and so I will not include that condition in the Corollary Relief Order.

[14]	The Petitioner seeks an order that the parties divide extraordinary expenses equally, although she indicated in Chambers that her share would be less than an equal one if those expenses are to be shared in proportion to the parties’ incomes.  The Respondent did not object to this and so I order that they be split equally.



[15]	The Petitioner also indicated that the only expenses she considers extraordinary at this point are approximately $1,200.00 for a new flute for the daughter and $300.00 for football registration for the son.  The Respondent questions the need for the flute.  There is insufficient evidence, and no sworn evidence, before me on the basis of which I can determine whether the flute and football registration are or are not extraordinary expenses as contemplated by s. 7 of the Child Support Guidelines, which requires that in determining whether an expense does come within that section, the Court is to take into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense, having regard to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.

[16]	To be clear, I cannot say based on what is before me whether the expenses claimed by the Petitioner qualify as extraordinary or not.  I will have to leave it to the parties to determine how to deal with those expenses.  Since it is likely from the nature of the expenses that they will benefit the children, I expect that it should not be difficult for the parties to come to an agreement and avoid further litigation.

[17]	The Respondent included in his draft order some conditions on what could be considered an extraordinary expense but since those conditions go far beyond what is set out in s. 7 of the Child Support Guidelines I cannot impose them absent agreement by both parties.

[18]	In compliance with the disclosure requirements of the Child Support Guidelines, the Corollary Relief Order will contain a provision that each party provide to the other, by July 1 in each year, a copy of his or her personal income tax return, notice of assessment and any notice of re-assessment for the previous taxation year.  This requirement will commence July 1, 2010 and should allow the parties to make any necessary adjustments to child support or their proportionate share of extraordinary expenses by agreement rather than having to return to Court.

[19]	The provision sought by the Respondent that the children make use of grants and scholarships for their education is reasonable and will be included in the Corollary Relief Order.  I will also include the provision he sought for provision of information about the children’s education.


[20]	I will also include the clause requested by the Respondent restricting contact between the parties.  I have expanded it to include that any contact is to be respectful.  Although it should not be necessary to specify that with adults, the address line of the email message from the Petitioner to the Respondent which is attached as an exhibit to the Respondent’s affidavit sworn June 17, 2009 persuades me that a reminder is in order.

[21]	I will also include in the Corollary Relief Order a provision for registration with the Maintenance Enforcement Office as requested.

[22]	Finally, I want to point out to the parties that it is normally up to the litigants to draft orders resulting from applications to the Court.  The Corollary Relief Order will be prepared by the Court as was done with the March 16, 2009 interim order.  However the parties should expect that if any further Court applications are taken, one of them will be responsible for preparing the resulting formal order.





V.A. Schuler
    J.S.C.

Dated this 19th day of August, 2009.

The Petitioner was self-represented.

The Respondent was self-represented.

	S-0001-DV 2001-103288


IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES



BETWEEN:

	SHEILA DIANE PYNN
	Petitioner

	- and -


	DARREN EUGENE PYNN
	Respondent





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