Guinn v. Descoteau

2013 BCSC 1408 Guinn v. Descoteau

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Guinn v. Descoteau, 2013 BCSC 1408 Date: 20130809 Docket: E028302 Registry: New Westminster Between: Deborah Yvonne Guinn Applicant And Robert Ralph Descoteau and Victor Hendley Respondents Before: The Honourable Mr. Justice Ball Reasons for Judgment Counsel for the Applicant: M. Brandon In person: V. Hendley R. Descoteau Place and Date of Hearing: New Westminster, B.C. January 8, 2013 Place and Date of Judgment: New Westminster, B.C. August 9, 2013 I. INTRODUCTION [1] A fourteen year old girl, Michelle Yvonne Guinn, has two fathers and one mother, Deborah Yvonne Guinn. Her biological father is Mr. Hendley and Mr. Descoteau is the father she has lived for her first nine and one half years. She has positive relationships with both of them. This is an application by her mother to reconcile and vary the support she receives from both of her two fathers for Michelle's support and for s. 7 expenses related to her health and elite sporting activities. [2] Both fathers have historically provided support for Michelle. [3] Mr. Descoteau has been an active parent and has maintained a regular access schedule with Michelle. He lived with Ms. Guinn and Michelle in a marriage-like relationship for approximately nine and a half years. Ms. Guinn and Mr. Descoteau separated in 2007. In 2008, it was agreed before this Court by consent order that

he had an obligation to support Michelle. The consent order provided that he would, based on a Guideline income of $65,680.00, pay $400.00 per month for the support of Michelle but no mention was made in that order of s. 7 expenses (Tab 9 of Exhibit F). He also agreed to maintain medical and dental insurance coverage and thereafter to provide coverage for Michelle. [4] The income of Mr. Hendley, Mr. Descoteau and Ms. Guinn, which are described below, demonstrate that the standard of living enjoyed by Michelle while her mother and Mr. Descoteau were living together would far exceed any standard of living Michelle might have experienced had Ms. Guinn and Mr. Hendley lived together with her. Mr. Descoteau's income was a multiple of the income of Mr. Hendley. [5] Mr. Hendley's relationship with Ms. Guinn was considerably shorter that of Mr. Descoteau. Mr. Hendley is Michelle's biological father but did not live together with Michelle and her mother at any time. Mr. Hendley has maintained access visits with Michelle. [6] Mr. Hendley agreed to pay support for Michelle in a written separation agreement dated October 23, 2007, filed in this Court (Tab 9 of Exhibit A). He is the owner of Vic's Custom Exhaust in Chilliwack. The agreement fixed Mr. Hendley's guideline income in 2007 at $29,000.00 per annum. He agreed to pay $271.00 per month for the support of Michelle and to contribute

to S. 7 expenses, he agreed to pay $129.00. His total monthly obligation was 400.00. [7] An attempt to get better information concerning Mr. Hendley's business income was made in 2010 in Provincial Court but was not successful in determining any more precise accounting of his income. His circumstances have changed since that time from becoming an owner of a business, to being an employee, to being an owner again. For the purposes of this hearing, the amount of 29,000.00 shall be imputed to him. He is currently over $3,000.00 in arrears. Based on the evidence in this case and the submissions before this court, including a relative lack of financial disclosure, there is no basis in law to cancel those arrears. The best interests of Michelle would not be advanced by the cancellation of the arrears. II. Mr. Descoteau and Child Support Payments [8] On December 3, 2010, Mr. Descoteau was laid off by his employer. He applied to this Court to reduce his child support obligations based on the lay off and his expectation that his income would decline. On February 3, 2011, the parties, Mr. Descoteau and Ms. Guinn, then unrepresented, appeared before the Honourable Mr. Justice Bernard, who dismissed the application to cancel arrears of child support maintenance but granted an application to reduce the monthly payment for child support to $300.00 per month, on the basis the circumstances

represented a limited but material change in circumstances, being a reduction in income. Mr. Descoteau, however, had received a termination settlement from his employer, received employment insurance income and then started work with a second employer shortly after the order was made, resulting in a Guideline income in 2011 of $74,880.00. Despite the increase in income, he did not make voluntarily make any upward adjustment of his monthly child support payments. [9] A judicial case conference was held with the parties in December 2011. Mr. Descoteau advised the Court at that time that he anticipated being laid off again. As a result, no application proceeded at that time. [10] The law is clear that where a supporting parent's income increases that the parent payor is obliged to increase support payments to reflect that increase in income. [11] In this case, the monthly child support tables provide that for an annual income of $74,880.00 in 2011, Mr. Descoteau should have been paying $699.00 per month. The difference in his income from 2010 of $65,689.00 (and without a job) to 74,880.00 with full time employment is a material change of circumstance, which would, if known by Bernard J. when he declined to make an order increasing child support payments, would likely have resulted in different terms. (Willick v. Willick, [1994] 3 S.C.R. 670, at para.21.) [12] He paid only $300.00

per month in that year. Having found a material change in circumstances, I order that he pay $4,788.00 dollars ($399.00 times 12 months = $4,788.00 for 2011) to bring his support payments current to the end of that year. Mr. Descoteau told the court his income for 2012 was expected to fall to $41,600 which would require a Guideline support payment for Michelle to be $379.00 per month for that year. Assuming he has only continued to make payments at $300.00 per month and his income has remained at the same level, he is in arrears $79.00 per month for the twelve months of 2012 or $948.00 for 2012. For 2013, making the same assumptions, Mr. Descoteau shall begin making monthly payments in the amount of $379.00 per month commencing on January 1, 2013, continuing on the first of every month thereafter. The difference between the ordered payments herein and actual payments made by him for 2013 will be added to arrears due by Mr. Descoteau for the support of Michelle. All arrears are due and payable forthwith. III. Positions of the parties for S. 7 expenses [13] The present application, filed by Ms. Guinn claims, among other things, the portion of s. 7 expenses, retroactive to the date the parties, Ms. Guinn and Mr. Descoteau separated in 2007. Ms. Guinn has been solely bearing the costs of the s. 7 expenses since separation. She also seeks an order that the ratio of those expenses be

fixed by the Court based on the current incomes of the three parties to regularize and provide security for future s. 7 payments. [14] Counsel for Ms. Guinn submitted it was important to make clear the obligations of the parties because it was in the best interests of Michelle to have certainty concerning s. 7 expenses on three articulated grounds: (a) Michelle is presently receiving and will, in the future, require orthodontic treatment and periodontic surgery recommended by her orthodontist (Tab 7, page 2), which treatment is not covered by present dental insurance available to the parties. For approximately six months prior to the hearing herein, Ms. Guinn has been paying $97.50 per month for this expense and has paid more than $1,200.00 on her own for this prescribed treatment. This payment will be ongoing as the treatment progresses. The treatment is outlined in Exhibit "G" (b) Michelle has been in daycare from 2008 until April of 2010. Daycare was necessary so that Ms. Guinn could be fully employed and share in the cost of supporting her daughter, as well as her own expenses. In 2008, daycare expenses were $5,270.00. Assuming that all of the $129.00 per month paid by Mr. Hendley for s. 7 expenses was applied to that expense, Ms. Guinn paid the balance or $3,722.00 out of her own pocket. In 2009, applying the same formula, she paid $3,652.00 out of her own pocket. In 2010,

Michelle attended daycare until April and in that year the contribution by Mr. Hendley would have paid the entire cost of the daycare for that year. Unfortunately, Mr. Hendley has not paid all of the payments he should have made and is presently engaged with the Family Maintenance Enforcement Program to ensure court ordered payments are made on a timely basis and arrears are paid for the benefit of Michelle. This matter will be discussed further below. (c) Michelle is a gifted athlete and plays softball at an elite level. Ms. Guinn made no claim for expenses until Michelle reached the elite level which she has earned by dint of hard work, talent and excellent play. Since Michelle has reached the elite level, Ms. Guinn has expended $3,436.00 for invitational softball training camps and equipment, including bats and sliding pants. (d) Michelle is doing well in school. Her mother anticipates that she will attend post-secondary training. This training, whether it is at a university, college or trade school, is clearly in the interest of Michelle. It is in her interest because post-secondary training is an essential element in obtaining well paying permanent employment in the current Canadian employment market. While no present payment would be required from any of the parties, and there would be necessary consultation with her three parents when the time is appropriate for Michelle

to choose a career path, it would be helpful to provide clear guidelines for the parties to understand their respective responsibilities once the educational plan to that career plan discussed and established with the parties. [15] According to Mr. Descoteau, Michelle comes from a family where post-secondary education has not been common in her forbears. He noted that she is being assisted by a tutor. Assistance from a tutor will increase her potential for a successful educational experience in high school. The participation in a program with a tutor suggests that Michelle has a level of discipline in her approach to education which will serve her well in attaining further education. Completion of further post-secondary education that will provide career opportunities for Michelle, which will allow her to exceed the achievements of her forbears. Her sporting excellence may well lead to scholarship considerations and potential assistance with the costs of a post-secondary education. IV. Comparison of Incomes [16] Both Mrs. Descoteau and Hendley expressed concerns about the level of expenditure necessary to support Michelle and to provide for her sporting activities. [17] In order to establish the obligations of each of Ms. Guinn, Mr. Descoteau and Mr. Hendley to future s. 7 expenses a review of their comparative Guideline incomes is necessary. The table below displays the income

data for the last five years: Table of Guideline Incomes for the Parties 2008 2009 2010 2011 2012 Mr. Hendley 29,000 (19.14 %) 29,000 (19.43 %) 29,000 (19.89 %) 29,000 (17.92 %) 29,000 (23.20 %) Ms. Guinn 46,723 (30.83 %) 57, 036 (38.22 %) 51,146 (35.09 %) 57, 267 (included severance payment) (36.38 %) 52,418 (anticipated supported with pay stubs) (43.53 % Mr. Descoteau 75,771 (50.01 %) 63, 185 (42.34 %) 65,689 (45.04 %) 75,606 (46.71 %) 41,600 (anticipated supported with pay stubs) (33.28 %) [18] On a forward looking basis, and relying on the 2012 figures principally, Ms. Guinn will be responsible for 43.53 % of s. 7 expenses, Mr. Descoteau will be responsible for 33.28 % of those expenses and Mr. Hendley will be responsible for 23.20 % of the expenses. On a historical basis, that is going back to the separation of Mr. Descoteau and Ms. Guinn, the percentage of the s. 7 expenses for which each of the parties is responsible is set forth as a percentage in the forgoing table. In this case those expenses include orthodontic and periodontic surgery and treatment set in Schedule "G", including expenses paid by Ms. Guinn to the date of this judgment for that treatment, for child care expenses from 2008 until 2010, expenses relating to softball participation and development including the $3,436.00 already expended by Ms. Guinn to date, I find are, in the circumstance of this case and

Michelle Guinn, appropriate s. 7 expenses. [19] At present, it would be premature to make an order with respect to post-secondary educational expenses, however, Mr. Descoteau and Mr. Hendley may anticipate orders requiring that they contribute in a like proportion to Michelle's post-secondary educational expenses, if those expenses occur. There would have to be consultation by Ms. Guinn with both of them regarding the reasonableness of those costs and their ability to contribute to them. They have both been aware of the s. 7 expenses paid by Ms. Guinn for some years and her desire for their financial assistance with s. 7 expenses on an ongoing basis. [20] Ms. Guinn is entitled to her costs of this application. "Ball J."