Date: 19980420
Docket: D040543
Registry: New Westminster
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
ADRIENNE ANNE MARIE NORTHCOTT aka
AUDREY ANNE MARIE NORTHCOTT
PETITIONER
AND:
DARRELL KINGSLEY NORTHCOTT
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE SINCLAIR PROWSE
Counsel for the Petitioner G. J. Morin
Counsel for the Respondent J. McQueen
Date and Place of Hearing April 7, 1998
New Westminster, B.C.
I) Nature of Applications and Relief Sought
[1] In this hearing, there were a number of applications
and cross-applications. At the conclusion of the hearing, I
decided a number of the issues, reserving only on the cross-
applications regarding the custody of the parties' children and
the cross-applications regarding child and spousal maintenance.
II) Applications Pertaining to Custody/Access
[2] At this hearing, Mrs. Northcott made an application
that she be granted sole custody with Mr. Northcott being
granted reasonable access - the times being specifically set
out in an order.
[3] Mr. Northcott, on the other hand, sought an order for
joint custody and joint guardianship - the parties having equal
time with the children or alternatively with specified access
to him.
[4] At the conclusion of the hearing of this application,
I advised the parties that regardless of whether Mrs. Northcott
was granted sole custody of the children or whether they were
awarded joint custody, the primary residence of the children
would remain with Mrs. Northcott.
[5] There is no dispute that Mrs. Northcott has been the
primary caregiver to the children. Approximately, a year and a
half after the birth of their first child Mrs. Northcott
stopped working and became a full time homemaker. Although
there is a dispute as to the circumstances of this change and
as to whether it was a mutual decision, there is no dispute
that she has looked after the children full time since then
which has been the last three years.
[6] Because the parties were having difficulty
communicating in a meaningful way, included in the various
orders that I made were orders setting out a mechanism whereby
the parties are to communicate in writing on a regular basis
until they both agree that it is no longer necessary to
continue with this process as they are able to effectively
communicate verbally.
[7] Further, I made orders with respect to the specified
access that is to be exercised by Mr. Northcott.
[8] With respect to the custody applications, for reasons
which follow, there will be an interim order of joint custody
and joint guardianship, the primary residence of the children
to be with Mrs. Northcott with specified access to Mr.
Northcott.
[9] Given that the children are very young, (the parties'
son is 4 years old and their daughter is 11 months), and that
as a consequence the children's relationship with their parents
is just developing, it would be in the children's best
interests to have as much contact and exposure to both parents
as a possible. In my view the best mechanism for this is an
order for joint custody.
[10] In making this order I am mindful of the fact that
the parties are now, and have for some time, being experiencing
serious communication problems. Although joint custody orders
are thought to be ill-suited to situations in which the parents
are having these types of problems, because it would be in the
children's best interests if their parents could learn to
communicate in a meaningful way; because it would be in the
children's best interests if their parents could jointly parent
them; and because there is now a mechanism in place to assist
the parents to communicate effectively with a minimum of
stress, in my view it would be in the children's best interest
to maintain the status quo, (meaning joint custody), at least
for the next while to ascertain if joint custody is
maintainable.
[11] It is difficult to determine from the evidence
presented how serious the parties' communication problems are.
If they existed before the birth of their first children, (and
Mrs. Northcott attested that they did), they usually arose
during a discussion on finances. They may not have been too
serious however, as the parties had lived together in apparent
harmony for four years proceeding that - one of their
neighbours testifying in an affidavit that they appeared to be
the perfect couple.
[12] After the birth of their first child, the
communication problems either developed, or if they existed
previously, they worsened considerably. The evidence is less
than clear as to whether the communication problems is a
symptom of other problems such financial strain, (on the part
of Mr. Northcott), and/or the emotional strain of adjusting to
parenthood, (on the part of Mrs. Northcott), rather than a
fundamental inability to communicate regarding the needs and
care of their children.
[13] With respect to their individual abilities to parent,
both presented evidence from independent sources that they were
good parents. In addition, Mrs. Northcott presented evidence
regarding observations made by some of their neighbours and
their nanny, of occasions in which they thought that Mr.
Northcott had acted inappropriately regarding the children
and/or Mrs. Northcott. (These allegations include allegations
that he attempted to discipline their son in a rather harsh
manner and further that he treated Mrs. Northcott in a
demeaning manner. Mrs. Northcott also alleged that Mr.
Northcott struck her, however, the criminal charges were
dismissed). All of these incidents took place when the parties
were living together and (there is no dispute) under
considerable strain because of their deteriorating marital
situation.
[14] Given the evidence of apparently independent people
attesting to their observations in which Mr. Northcott not only
acted appropriately with his children, but showed himself to be
a caring and loving parent, (these observations having occurred
after the separation), I have concluded that if true the
incidents in which Mr. Northcott acted inappropriately were the
result of a momentary lapse because of the strain that the
parties were under at the time rather than an absence of
parental competence or caring.
[15] Now that the parties have separated; that there are
orders in place that impose some structure and routine on their
situations; and that Mr. Northcott, as observed by these
independent witnesses, is able to care for the children, I have
concluded that an order for joint custody and guardianship
would not be inappropriate. As was mentioned earlier, if the
parties can learn to communicate meaningfully this form of
custody is in their children's best interest.
[16] If it is not clear in this judgment, the purpose of
this order is to try a joint custody arrangement for a period
now that the situation between the parties is becoming more
stable. If an application to vary this order is brought in the
future, this order should be viewed from the perspective that I
considered that it was premature to conclude that a joint
custody order would not work rather than from the perspective
that I was satisfied that it would work. I hope it will work
because as I have repeated throughout these reasons, it would
be in their children's best interests if it did work.
III) Applications Pertaining to Child and Spousal Maintenance
A) Child Maintenance
[17] In December, 1997 the parties reached an agreement
that Mr. Northcott would pay Mrs. Northcott $1064.00 per month
for the support of the children plus $103.00 for their oldest
child's pre-school fees. Mr. Northcott is a car salesman and
his income is in part based on commissions. When this order
was made, he anticipated that his income would be $84,000.00
per year. The amount of child maintenance was calculated in
accordance with that.
[18] As it has turned out, Mr. Northcott's income for 1997
was $92,378.00, rather than $84,000.00. Both parties are
agreed that on the basis of that income the amount to be paid
in child maintenance is $1147.00 per month - $83.00 dollars
more than he is paying now.
[19] Given this situation, I will vary this previous order
and increase the maintenance to $1147.00 per month plus the
$103.00 pre-school fee.
B) Spousal Maintenance
[20] Also in December, 1997 the parties agreed that Mr.
Northcott would pay Mrs. Northcott $1,200.00 per month, plus
the household maintenance costs, (such as house insurance and
property taxes), and the repayment of a loan of $18,000.00 to
his parents, the payments for which fluctuate from month to
month. (Aside from this outstanding loan, the parties have
clear title to their home).
[21] In this hearing, Mrs. Northcott is seeking an
increase in that order to $2,000.00 per month based on the fact
that the amount of $1,200.00 was based on an anticipated income
of $84,000.00 for 1997 rather than the actual income of
$92,378.00.
[22] As was touched on earlier, Mrs. Northcott does not
presently work outside the home and has not worked outside the
home since 1995. Her sole source of income are the maintenance
payments from Mr. Northcott.
[23] During these proceedings, submissions were made on
Mrs. Northcott's behalf that Mr. Northcott's evidence should
not be relied upon as he had given misleading information in
the past.
[24] Upon considering these submissions, I concluded that
they were not supported by the evidence. That is, although
some portions of Mr. Northcott's property and financial
statement had to be subsequently corrected, this appeared to be
attributable to the fact that he was preparing it shortly after
separation, before it had been clarified as to which party
would be responsible for which expenses. Mrs. Northcott
experienced somewhat the same situation and had to correct her
property and financial statement also. The mistake regarding
his income to have been just that. Because of the fact that
his income fluctuates with his commissions, it was difficult to
calculate the exact figure in the time allowed.
[25] Mr. Northcott had attested that his income has
decreased in 1998 and is likely to remain less than he earned
in 1997 because of the recession that British Columbia is now
experiencing; because the company for which he works has been
affected by the downturn in the economy in southeast Asia
because it is based in Japan; and because the company for which
he works has limited its product lines this year. In
particular, he attested in his evidence that a popular car
model sold by his company is going to undergo a major design
change next year. As a consequence some of their customers are
postponing their replacement purchases until then.
[26] As was acknowledged during these proceedings,
although Mrs. Northcott is not living a luxurious lifestyle,
she is able to manage financially on the spousal maintenance
that she is being paid. Having considered the submissions of
Mr. Northcott, I am not satisfied that he has the ability to
pay Mrs. Northcott more than $1,200.00 per month. Based on the
evidence to date, it would not appear that he is going to be
able to earn an income of $92,378.00 in 1998.
[27] For these reasons, I have concluded that it would be
inappropriate to increase the quantum of maintenance presently
being paid to Mrs. Northcott because I am not satisfied on the
evidence presented that Mr. Northcott has the financial
capacity to pay her more. Mrs. Northcott's application for an
increase in spousal maintenance is dismissed.
IV) Costs
[28] Given that each of the parties experienced some
success with respect to the orders that have been made in this
judgment and that were made on the day of the hearing, each
party will bear their own costs.
"Sinclair Prowse, J."
Sinclair Prowse, J.
Vancouver B.C.
April 20, 1998