Duncan v. Duncan

Citation: Duncan v. Duncan Date: 19990916 1999 BCCA 547 Docket: CA024933 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: THE HONOURABLE CHIEF JUSTICE MCEACHERN September 16, 1999 THE HONOURABLE MR. JUSTICE FINCH THE HONOURABLE MR. JUSTICE MACKENZIE Vancouver, B.C. BETWEEN: LOIS KATHLEEN DUNCAN PETITIONER (RESPONDENT) AND: WILLIAM DAVID DUNCAN RESPONDENT (APPELLANT) Mr. Duncan appearing on his own behalf J.R. Groves appearing for the Respondent [1] MACKENZIE, J.A.: This is an appeal from a judgment dismissing the appellant's application for child support in accordance with the Child Support Guidelines. [2] The appellant, William Duncan and the respondent, Lois Duncan were divorced on 6th February 1995 after a marriage of nearly 20 years. The parties separated in May of 1993. The appellant was granted custody of the four children of the marriage, three sons now ages 22, 20, and 17 and a daughter now nearly 12. [3] The parties made a separation agreement and the divorce order was in accordance with its terms. The provision which is central to this dispute is Clause 7.2 of the Separation Agreement as follows: The husband shall be responsible for the maintenance of the children. The corresponding term of the divorce order is: "THIS COURT FURTHER ORDERS that the Respondent, [that is the husband] shall be responsible for the maintenance and support of the children. [4] After the birth of the first child Mrs. Duncan either did not work at all outside the home or worked part-time until the separation. Mr. Duncan has been continuously employed at all material times as a high school teacher. One week before the separation Mrs. Duncan started working full-time as a receptionist. Her annual earnings at the time of this application were $38,016.00. [5] In 1989, Mr. Duncan received an inheritance from the estate of his father in the total amount of $200,067.30. The separation agreement records that the parties agreed that the inheritance was not a family asset and it was not included in the division of property between the parties. Mr. Duncan stated in his affidavit that he kept the inheritance funds in tact to provide for the future of the children. [6] The chambers judge concluded after reviewing the affidavits of the parties and the other materials filed, that Mrs. Duncan had a claim to a share of the inheritance as a family asset which she forewent in return for Mr. Duncan's agreement to maintain the children. In my view, that finding was open to the chambers judge on the material before him and I can see no error in his conclusion. [7] The chambers judge noted that the parties' financial position from the time of the divorce to the date of this application was essentially unchanged except that the children were older and more costly to maintain and Mr. Duncan had recently entered a new relationship. [8] Mr. Duncan to his credit does not assert that he is unable to support his children adequately. His position is essentially that the Guidelines are mandatory and that Mrs. Duncan as the non-custodial parent should be paying $852 per month for child support at her income level. He also asks for an additional $95 per month as a contribution to extraordinary expenses. [9] Before the chambers judge Mrs. Duncan relied on s.15.1(5) of the Divorce Act. That provision deals with original orders and as this application is an application to vary the divorce order the applicable provision is properly s.17(6.2). The wording of the two provisions is essentially the same. Section 17(6.2) reads: (6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. [10] Applying the language of the subsections the chambers judge concluded that the separation agreement had made special provision for the benefit of the children. Specifically, Mrs. Duncan had relinquished her claim to a share of the inheritance as consideration for not paying child support. The chambers judge concluded that it would be inequitable to require her to pay child support in the light of the special provisions in the separation agreement. [11] Mr. Duncan is relying on the case of Wallace v. Wallace [1998] B.C.J. No. 203 (B.C.S.C.). In that case the court could not find the special provision in the separation agreement at issue that would make it inequitable to apply the guidelines. Each case depends upon the interpretation of the particular agreement at issue. Here the interpretation of this agreement by the chambers judge was that there was a special provision which rendered child support inequitable and I cannot say that he erred in coming to the conclusion that he did. [12] The obligations of parents to children are paramount and prevail over any agreement between the parents when the financial needs of the children are in conflict with the agreement. Here, however, Mr. Duncan is financially capable of supporting the children in accordance with the terms of his agreement and he has acknowledged that the $200,000.00 is for their benefit. Accordingly, in my view, there is no conflict between the needs of the children and the terms of the agreement. I would dismiss the appeal. [13] MCEACHERN, C.J.B.C.: I agree. [14] FINCH, J.A.: I agree. [15] MCEACHERN, C.J.B.C.: The appeal is dismissed. "The Honourable Mr. Justice Mackenzie"