MIC v. JKC, 2011 NUCJ 31

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: MIC v.

JKC, 2011 NUCJ 31 Date: 20111130 Docket: 08-07-678 DIV Registry: Iqaluit Applicant: MIC -and- Respondent: JKC ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Applicant): Susan Switch Counsel (Respondent): David Stout Location Heard: Iqaluit, Nunavut Date Heard: October 19, 2011 Matters: Children’s Law Act, S.N.W.T. 1998 c. 14, as duplicated for Nunavut by s. 29 of the Nunavut Act; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), as amended; Family Law Act, S.N.W.T. 1997, c. 18 , as duplicated for Nunavut by s. 29 of the Nunavut Act.

REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] This is an application for variation of an interim custody and child support order and for an order directing that the family home be sold. [ 2 ] The parties were married in 1998, separated in 2007, and were granted a divorce judgment in October of 2008. The three children of the marriage are currently ages 7, 9, and 11 years. [ 3 ] In November of 2007, on the basis of an ex-parte application, the mother was granted interim custody of the children and exclusive possession of the family home.

Two weeks later the father was granted specified access to the children on Tuesday and Wednesday evenings and on alternating weekends, during the day. It was not possible for him to exercise overnight access at that time as he had not secured housing for himself and was staying with friends while he tried to obtain appropriate housing. In addition, the father was to pay support of $2,000 per month to the mother, to be later characterized as child or spousal support. [ 4 ] In May of 2008 there was a hearing at which time evidence was called and the Court had the opportunity to hear directly from the parties.

At the conclusion of the hearing the ex-parte order was set aside, interim possession of the family home remained with the mother, and interim custody of the children continued with the mother; with the father having specified access Tuesday and Thursday evenings from 5:00 – 8:00 pm and on alternating weekends from Friday after work to Sunday at 7:00 pm. This included overnight access, as the father had secured housing and had appropriate overnight accommodation for the children. [ 5 ] The matter was next before the Court on the issues of custody, access, and support in April of 2011.

At that time, the actual custody and access regime was that the children were with the father from Wednesday at 5:30 pm to Sunday at 7:00 pm.

Although there was some dispute over how long this custody and access regime had been in place, with the father saying that it had been in place since the fall of 2008 and the mother saying it had been in place since October of 2010, there was no dispute that in April of 2011, it had been in place, at the very least, for some months. [ 6 ] There being no dispute between the parties as to the status quo, the Court simply confirmed it by way of an Order in April of 2011, effectively varying the Order issued in May 2008.

At the request of the parties, the Court also recommended that counsel be appointed for the children and adjourned the issue of child support indefinitely, to be brought back to Court with proper notice. [ 7 ] The matter was back before the Court in October of 2011, at which time each of the parties sought custody of the children (the father seeking sole custody, the mother seeking joint custody with the children's primary residence being with her) and child support.

The father also sought an Order that the family home be sold. [ 8 ] In October of 2011 the Court was advised that counsel had been appointed for the children. The appointment was recent and counsel had not had the opportunity to review the file or carry out the work necessary to provide assistance to the Court. II. ISSUES 1. Should the existing custody and access regime be varied? 2. Should the existing child support Order be varied? 3. Should the Court make an Order directing that the house be sold? III. ANALYSIS A. Should the existing custody and access regime be varied?

[ 9 ] While the test for variation of interim custody orders may be somewhat less rigorous than that for variation of a permanent order (see: D(

G) v D(A), 2008 NUCJ 21 , [2008] Nu J No 23), the party seeking the variation still has an onus to demonstrate a material change in circumstances. Without such a requirement the parties could be before the Court continuously, without any certainty ever being brought to the issue. [ 10 ] The current Order, issued in April of 2011, simply confirmed an existing custody and access regime which had been established by the parties and which constituted a variance from the Order issued by the Court in May 2008. In May of 2008, the mother was granted interim custody with specified access to the father.

Over time, the parties varied from the May 2008 Order, with the father spending more time with the children than set out in the Order. This variance, which was essentially reached by the agreement of the parties, has been in place, at the very least, for approximately 13 months. [ 11 ] Neither party has led any evidence to substantiate a material change in circumstances that would justify a variance to the April 2011 custody and access Order. [ 12 ] Furthermore, the Court has been advised that counsel has recently been appointed to represent the children.

This appointment has occurred at the request of the parties. Counsel for the children has not had the opportunity to gather the necessary information to provide assistance to the Court. It would be unwise for the Court to disrupt the routine that the children have known for at least one year without the benefit of representations from the children's lawyer. Indeed, to do so would undermine the point of having a lawyer for the children.

Accordingly, I decline to vary the existing custody and access order. [ 13 ] With the holiday season coming, it is expected that the parties will ensure that the children are able to spend significant amounts of time with each parent. Each parent has an important role to play in the lives of the children and these relationships should be fostered. B. Should the existing child support Order be varied? [ 14 ] The existing Child Support Order was issued in 2008, when the mother had the children for the majority of the time and the father was exercising limited access, due to his living circumstances.

That situation has changed and there is no dispute that the father now has the children with him a majority of the time. This change in access brings s. 9 of the Child Support Guidelines into effect. [ 15 ]

Section 9 of the Guidelines provides as follows: Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account: (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 16 ] The Supreme Court of Canada in Contino v Leonelli-Contino, 2005 SCC 63 , [2005] 3 SCR 217 [Contino], stated that the weight to be given to the three factors set out in s. 9 will vary depending on the circumstances of the particular case. The emphasis is on flexibility and fairness, with recognition that a shared custody regime may well result in overall increased child related expenses. The goal is to provide a fair level of support and to minimize any discrepancy between standards of living in the two households. (

i) S. 9(a): table amounts for each of the spouses

[ 17 ] In Contino, the Court indicated a preference for the “simple or straight setoff” approach to consideration of the table amounts for each of the spouses (Contino at para 44 ). This approach consists of determining the table amount for each of the parents as though each were paying support and calculating the difference between the two. The difference is the amount payable. [ 18 ] The father’s income for the 2010 tax year was $120,450.19, for a table amount of $2,337 per month. [ 19 ] The mother’s income for the 2010 tax year was $78,438.07.

However, she has very recently started a new job which, although at a lower rate of pay, is expected to provide greater job security over the long term. Her decision to take this new job has not been challenged as being unreasonable. Her gross annual income in her new position is expected to be $60,000, for a table amount of $1,239. [ 20 ] The difference between the two amounts is $1,098, payable by the father. However, this does not end the analysis. The Court must go on to consider the factors set out in s. 9 (

b) and (

c) and adjust the set-off amount as appropriate. (ii) S. 9(b): the increased costs of shared custody arrangements [ 21 ] Pursuant to this section, the Court recognizes that in shared custody arrangements the total amount of child related expenses may be greater than in arrangements where the children are living primarily with one parent. This is because there are two homes being provided to the children, with the additional costs that such duplication necessarily entails. [ 22 ] Unfortunately, the parties have not specifically identified in their financial statements the child related costs.

However, some of the increased costs flowing from the shared custody arrangement are easy to identify. Each of the parties filed financial statements in May of 2008. At that time the father was renting a single room and, because he did not have appropriate accommodation for the children, was not able to exercise overnight access. The father now maintains a household which fully accommodates the needs of the children. Each of the parties filed financial statements in October of 2011.

A comparison of the 2008 and 2011 financial statements allows the Court to determine the increased cost of the shared custody arrangement. [ 23 ] In 2008, the father's cost for accommodation was $700 per month. His expense for food and household supplies was $600 per month. The October 2011 financial statement shows the expense for accommodation at $1,987.24 and the cost of food and household supplies at $1,200 per month.

The increased cost in accommodation and food and household supplies for the father following the commencement of the shared custody arrangement was $1,887.24 per month. [ 24 ] The mother continues to reside in the family home so her cost for accommodation has remained constant. Her financial statements show a decrease in the cost of food and household supplies from $1,200 per month in 2008 to $800 per month in 2011, for a decrease of $400 per month. [ 25 ] The total increase in child related expenses as a result of the shared custody arrangement is $1,487.24.

Pursuant to the calculation under the simple setoff, the father would be paying support of $1,098. The difference between what the father would pay under the setoff and the increase in child care expenses because of the shared custody arrangement is $389.24.The increased expense should be apportioned between the parties in accordance with their incomes: 66.5% ($258.84) apportioned to the father and 33.5% ($130.39) to the mother. [ 26 ] The total payable by the father would be $1,356.84, subject to further adjustment pursuant to s. 9(

c) of the Guidelines. (iii) S. 9(c): the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought [ 27 ] Pursuant to s. 9(c), the Court must consider the impact of any change in the support order on the standard of living of the children. The Court should attempt to minimize any disparity in standard of living between the two households, taking into consideration the means of the parties and their relative abilities to absorb the additional costs of a shared custody arrangement.

[ 28 ] The father's net take home pay is $6,056.80 per month and his monthly expenses are $4,194.90. He is also paying an additional $1,830 per month to service his debt load. None of these figures take into consideration the mortgage payments on the family home, which the father is paying by way of child support. [ 29 ] The mother's net take home pay is estimated to be $3,500 per month. Her expenses (not including the mortgage payment) are $2,955.62.

She is also servicing a debt load of $535.34 monthly. [ 30 ] There is some issue regarding the debt payments, as both parties identify a shared line of credit (presumably shared with each other) and each show significant monthly payments on it. In any event, it appears that the parties may both have some flexibility on the monthly amount paid towards their debt loads. At this time the mother is dependent upon the child support to provide appropriate overnight accommodation for the children. [ 31 ] On balance, I find that an appropriate amount of support for the father to pay is $1,500 per month.

He may pay this by paying it towards the monthly mortgage payments, with the mother topping up the balance. C. Should the Court make an order directing that the house be sold? [ 32 ] The father has asked for an Order directing that the house be sold. He takes the position that the equity in the home would assist the parties in paying off debts accrued during the marriage.

While that is undoubtedly the case, it would put the mother at a significant disadvantage as she would likely be unable to afford appropriate accommodation given her income and, accordingly, would not be able to accommodate the children overnight. The issues of permanent custody, permanent child support, and property issues, remain to be decided at trial, which is set for April of 2012. It is appropriate that issues relating to the house be determined at that time. V.

CONCLUSION [ 33 ] The applications to vary the custody/access regime are dismissed. [ 34 ] The father shall pay child support to the mother in the amount of $1,500 per month, which may be paid by making payments directly to the mortgage on the family home. [ 35 ] The application for an order directing sale of the family home is dismissed. Dated at the City of Iqaluit this 30th day of November, 2011 ___________________ Justice S. Cooper Nunavut Court of Justice