B.N. v. E.B., (2007) 422 A.R. 15 (NWTCA)

• Judge: Costigan, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: November 22, 2007
• Jurisdiction: Northwest Territories
• Citations: (2007), 422 A.R. 15 (NWTCA)

B.N. v. E.B. (2007), 422 A.R. 15 (NWTCA);

      415 W.A.C. 15

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. DE.037

B.N. (appellant) v. E.B. (respondent)

(A-0001-AP-2006000010; 2007 NWTCA 6)

Indexed As: B.N. v. E.B.

Northwest Territories Court of Appeal

Costigan, Slatter and Rowbotham, JJ.A.

November 22, 2007.

Summary:

A 2002 consent order ordered joint and shared custody of three children with the children spending approximately fifty percent of their time with each parent on a flexible basis. The mother applied by Notice of Motion for sole custody and child support. The father did not file a Notice of Motion but argued before the trial judge that he should be awarded sole custody. The trial judge dismissed the mother's application for sole custody but varied the flexible aspect of the consent order to provide for more structure. He awarded monthly child support of $583 for the older child and $798 for the two younger children. The father appealed.

The Northwest Territories Court of Appeal allowed the appeal in part, reducing monthly child support respecting the two younger children to $622.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1940

Custody and access - Variation of custody and access rights - General - A 2002 consent order ordered joint and shared custody of three children with the children spending approximately fifty percent of their time with each parent on a flexible basis - The mother applied by Notice of Motion for sole custody and child support - The father did not file a Notice of Motion but argued before the trial judge that he should be awarded sole custody - The trial judge dismissed the mother's application for sole custody and declined to consider the father's request for sole custody in the absence of a Notice of Motion from the father - However, the court varied the flexible aspect of the consent order to provide for more structure - The Northwest Territories Court of Appeal held that it was not an error in principle to decline to consider the father's request for sole custody in the absence of a Notice of Motion from the father - In any event, the relevant inquiry on the custody issue was the best interests of the children which the trial judge found required structured shared custody - The court was not satisfied that this determination would have been any different had the father filed a Notice of Motion seeking sole custody - See paragraphs 10 and 11.

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - [See Family Law - Topic 1940 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 9].

Counsel:

Brian Asmundson, for the appellant;

Candace Seddon, for the respondent.

This appeal was heard on November 22, 2007, before Costigan, Slatter and Rowbotham, JJ.A., of the Northwest Territories Court of Appeal. Costigan, J.A., delivered the following memorandum of judgment for the court from the bench on that date and filed the memorandum on December 5, 2007.