Jade Alexandra Chaboyer - v. -, 2015 SKPC 067

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 067 Date: April 20, 2015 Location: Cumberland House _____________________________________________________________________________ Between: Jade Alexandra Chaboyer - and - Matthew Hardy Appearing: Ms. Kimberly Earing For the Claimant Mr. Marcel Simonot For the Respondent JUDGMENT S.I. ROBINSON , J

[ 1 ] The Claimant, Jade Alexandra Chaboyer of Cumberland House, Saskatchewan, has brought an application pursuant to The Children ’s Law Act, 1997 to have the Respondent, Matthew Hardy of Smeaton, Saskatchewan, declared the father of her son, Anthony Kade Laliberte born October 13, 2007, and an application pursuant to The Family Maintenance Act, 1997 to have the Respondent provide support for Anthony. [ 2 ] The Respondent’s financial statement filed in these proceedings indicates he is employed at a good wage as a power line technician for a company in Coquitlam, British Columbia. [ 3 ] When this matter was before me at Cumberland House on September 30, 2014, the parties consented to a judgment that declared the Respondent to be the biological father of Anthony and required him to pay monthly child support in the sum of $1,246.00 per month. [ 4 ] The parties also agreed, as I understand it, to have the Respondent designate his son Anthony as a beneficiary under any medical or dental plan he holds.

Accordingly, I so order that the Respondent designate Anthony as a beneficiary under any medical or dental plan he has and not change that designation for so long as Anthony remains a child within the meaning of The Family Maintenance Act, 1997 . [ 5 ] The parties could not agree on whether the Respondent should be required to designate Anthony as a beneficiary of any life insurance policy he might hold or as a beneficiary of any pension plan he might hold. On September 30, I adjourned these unresolved issues for further argument and decision. [ 6 ]

Section 9 of The Family Maintenance Act, 1997 , reads, in part: 9

(1) On an application pursuant to this Act, the court may make an interim or final order on any terms and conditions that the court considers appropriate, including one or more of the following provisions: (

d) that a person who has a policy of life insurance as defined in The Saskatchewan Insurance Act ; (

i) designate his or her dependant as a beneficiary irrevocably or for the period designated by the court; and (ii) pay all premiums on the policy; (

e) that a person who has an interest in a pension plan or other benefit plan designate his or her dependant as a beneficiary under the plan and not change that designation. [ 7 ] I have been provided with only limited information as to what life insurance or pension plan the Respondent actually holds. Regarding life insurance, counsel for the Respondent advises that the Respondent holds a policy valued at $50,000.00, and counsel for the Claimant accepts this information as correct.

Regarding pension plans, the Respondent’s financial statement shows that he pays $1,313.14 per month into an employment pension plan and $346.42 into the Canada Pension Plan. [ 8 ] Since the birth of his son Anthony, the Respondent has married one Sarah Hardy and they have two children together. The Respondent’s counsel argues I should not order that Anthony be designated as a beneficiary of the Respondent’s life insurance or employment pension plan since such designations would unfairly prejudice the Respondent’s current spouse should she be left widowed.

Life Insurance [ 9 ] When a parent dies, any obligation to provide child support ordinarily comes to an end. It is reasonable to assume that

paragraph 9(1)(

d) of The Family Maintenance Act, 1997 is meant to reduce the impact that the loss of child support might have on a child and his or her custodial parent. [ 10 ] Under paragraph 9(1)(d), a court can only order a parent to designate a child as the beneficiary of an existing life insurance policy. This was confirmed in Leland v Klette , 2013 SKQB 277 , a case cited by the Respondent’s counsel, at paragraph 93 where Justice Ryan-Froslie wrote: Section 9(1)(

d) gives the Court the authority to order a dependent be designated irrevocably as a beneficiary of an existing life insurance policy. The statute does not give the Court authority to order a parent to acquire a life insurance policy. There is good reason for this. Whether insurance can be obtained is dependent upon the assessment of a third party, that is, the insurance company. Such an assessment will look at both the age and health of the applicant. The older an applicant and the poorer their health, the less likely they will qualify for life insurance and if they do, the higher their premiums will be.

The premiums for such policies can be significant. [ 11 ] Should the child Anthony be named as a beneficiary of the Respondent’s existing $50,000.00 life insurance policy? In my view, he should be. It may well be that the Respondent has made provisions for Anthony in a will. And it may be that in the event the Respondent died without having provided for Anthony in his will, the Claimant could bring a successful application against the Respondent’s estate under The Dependants ’ Relief Act, 1996.

But to the extent that the Respondent’s life insurance allows, it is preferable that Anthony’s future financial position be more clearly known. [ 12 ] If Anthony were the sole beneficiary of the Respondent’s life insurance policy, the $50,000.00 would cover only 40 months worth of child support at the current payment level. This would cover a period ending just short of Anthony’s 11 th birthday. Based on this, it could be argued that Anthony should be named as the sole beneficiary of the $50,000.00 insurance policy.

Such a designation would, however, fail to address the needs of the Respondent’s spouse and other children. [ 13 ] Assuming Anthony was made the sole beneficiary of the $50,000.00 life insurance policy, the Respondent might be able to purchase more life insurance for the benefit of his wife and other children. But as Justice Ryan-Froslie pointed out in Leland v Klette , supra , that option would depend on the approval of an insurance company and could prove to be expensive. [ 14 ] Subsection 156(2) of The Saskatchewan Insurance Act ,

Part V of which applies to life insurance in our province, reads: 156(2) Where two or more beneficiaries are designated otherwise than alternatively, but no division of the insurance money is made, the insurance money is payable to them in equal shares. [ 15 ] I take subsection 156(2) of the Act to mean that an insured can divide the proceeds of his or her life insurance amongst multiple beneficiaries in either equal or unequal shares and that where no particular division is specified, the beneficiaries named will take in equal shares. Although I have not found case law on the point, common sense suggests a judge making an order under paragraph 9(1)(

d) of The Family Maintenance Act, 1997 would have a similar power to order what share of insurance benefits a dependant child is entitled to. If this were not the case, an insured could seek to defeat paragraph 9(1)(

d) by allocating only a tiny portion of any insurance benefits to a dependant child. [ 16 ] After considering the needs of Anthony and also those of the Respondent’s wife and other children, I am of the view that Anthony should be named as a beneficiary of the Respondent’s life insurance. Regarding the share he should receive, I will order that he receive a share not less than that of any other beneficiary named in the Respondent’s policy. In the event that the only other beneficiary named is the Respondent’s spouse, Anthony would receive at least a 50% share.

On the other hand, if the Respondent were to name his wife and other children as beneficiaries taking in equal shares, Anthony would receive a 25% share. [ 17 ] To summarize, I order that the Respondent designate his son Anthony Kade Laliberte as a beneficiary of the life insurance policy he presently holds in a share not less than that of any other beneficiary under the said policy and then maintain that designation for so long as Anthony remains a child within the meaning of The Family Maintenance Act, 1997 . I further order that the Respondent pay all premiums on the said policy.

Employment Pension Plan [ 18 ] On the issue of whether the child Anthony should be named as a beneficiary of the Respondent’s employment pension plan, the Respondent’s counsel argued against such a designation on the grounds that this would unfairly prejudice the Respondent’s current spouse. I do not believe this to be the case since the Respondent can reasonably expect that his spouse’s interests will be protected by legislation. [ 19 ] Since I was not provided with a copy of the Respondent’s employment pension, it is not possible to determine what law governs it.

But if The Pension Benefits Act, 1992 of Saskatchewan applies, sections 33 and 34 of that Act entitles a surviving spouse to pension plan benefits. These benefits cannot be taken away unless the surviving spouse signs a clear waiver in writing prior to the death of the pension plan holder.

Other provinces have similar legislation protecting a surviving spouse (e.g., Pension Benefits Standards Act , RSBC 1996, c 352, ss 34-35). [ 20 ] If the Respondent died without leaving a surviving spouse, the commuted value of his pension would, at least under The Pension Benefits Act, 1992 , become payable to any named beneficiaries or his estate.

In this situation, the Respondent’s son Anthony would benefit from being named as a contingent beneficiary of the Respondent’s pension plan while he remains a dependant child. [ 21 ] I will make a further order that the Respondent designate his son Anthony Kade Laliberte as a contingent beneficiary of any pension he may hold. Anthony’s entitlement to any pension benefits is not to be less than that of any other contingent beneficiary.

I further order that the Respondent not change this designation for so long as Anthony remains a child within the meaning of The Family Maintenance Act, 1997. [ 22 ] I wish to thank both counsel for their submissions in this matter. ____________________________________ S.I. Robinson, J