Guikema v. Guikema, 2011 ONCJ 877

COURT FILE No.: Goderich – D89/99 DATE: 2011 – 12 – 06 Citation: Guikema v. Guikema , 2011 ONCJ 877 ONTARIO COURT OF JUSTICE BETWEEN: JOAN LOUISE GUIKEMA Applicant — AND — MARTY PETER GUIKEMA Respondent Before Justice Brophy Heard on 19 July 2011 Reasons for Judgment released on 6 December 2011 Joan Louise Guikema on her own behalf Marty Peter Guikema on his own behalf Brophy J.: INTRODUCTION [ 1 ] This is a Motion to Change with respect to child support. The Motion was brought by the Applicant and relates to an Order of this court made on consent 6 March 2001.

That Order dealt with child support for two children: Jamie David Guikema, born 1 September 1991, and Brooke Nicole Guikema, born 26 April 1995. The Order provided that the Respondent would pay child support to the Applicant at the rate of $340.00 per month for the two children. BACKGROUND [ 2 ] In 2001 the income of the Respondent was $35,000.00. That would ordinarily have produced a child support payment of $506.00 per month according to the Child Support Guidelines. It was however reduced on consent to $340.00 because of a property settlement between the parties.

The Order stated that the child support was to remain fixed for four years and thereafter the parties were free to seek a variation. [ 3 ] The Order also required the Respondent to serve the Applicant with a copy of his Income Tax Return for the preceding year by 1 June of the following year commencing in 2001. This has been problematic. [ 4 ] The 6 March 2001 Order flowed out of a Separation Agreement dated 23 January 2001. The child support arrangements set out in the Separation Agreement were generally replicated in the Order.

It would appear that the parties had entered into litigation, with an interim Order being made, and then resolved the case by way of the Separation Agreement and to conclude the litigation had the Separation Agreement, in so far as it was appropriate, act as a form of Minutes of Settlement. [ 5 ] The parties are unrepresented and had some difficulty articulating the facts and legal issues that needed to be determined, although it must be said that the Applicant worked very hard at preparing the Trial Record and collecting all of the relevant documents.

Her efforts provided the court with relevant information that assisted in shaping and understanding the issues and facts. By way of contrast the Respondent was not organized and indeed did not even bring to court on the day of the trial his copy of the two volumes of the Trial Record that had been painstakingly assembled by the Applicant. ISSUES [ 6 ] The issues are: (

a) The Respondent’s current income level, (

b) The Respondent’s obligation to pay support for Jamie, (

c) Calculation of arrears,

(

d) Retroactivity, (

e) Section 7 expenses, and (

f) Ongoing Support. FACTS [ 7 ] The Applicant is 46 years old, having been born on 6 December 1964. She has always lived in the Goderich area and has worked for 29 years as a dietary aid at the Goderich hospital. She has a Grade 12 education and owns her own home. [ 8 ] The Applicant and Respondent began living together in 1987, were married in 1989 and separated in 1999. There was a court proceeding that settled, as mentioned, pursuant to a Separation Agreement. [ 9 ] The provisions of the court Order dated 6 March 2001 related to child support are as follows: 3.

The Respondent shall pay to the Applicant for the support of the children the sum of $340.00 per month commencing on February 1, 2001 and on the first day of each month thereafter. The Respondent's annual income is $35,000.00. The guideline amount for two children based on this income is $506.00. The Respondent is paying less than the guideline amount because the Respondent has transferred his equity in the matrimonial home and other property to the Applicant valued at $10,000.00.

The parties agree that the Respondent shall receive the benefit of lower support payments for a period of four (4) years commencing February 1, 2001. Thereafter, either the Applicant or the Respondent may seek a review of child support. The Respondent shall not be entitled to seek a reduction of support during the four (4) year period regardless of his circumstances. 4.

The Respondent shall pay one-half of the cost of registering the children of the marriage in all extracurricular activities, summer camp and sports activities provided the Respondent consents to the proposed registration, such consent shall not be unreasonably withheld. The Respondent shall pay these amounts within five (5) days of the Applicant delivering proof to him of the expense incurred. 5.

The Applicant and the Respondent shall contribute equally towards the cost of postsecondary education of the children of the marriage, which costs include tuition, residence, travel, supplies, equipment and other incidental expenses. 6. The Respondent shall notify the Applicant of any change of employment and shall provide her with a copy of his income tax return for each year by June 1st of the following year starting with the return for 2000 to be provided by June 1st, 2001. [ 10 ] Jamie is now 20 years old and Brooke is 16 years old. The two children have always lived with their mother.

Jamie completed high school in 2010 and worked at Zellers for a year trying to save enough money to go to College. He has been admitted to a Law & Security Program at Lambton College and will start there in September of 2011. Brooke is in high school. [ 11 ] Both children have traditionally always been actively involved in extracurricular activities in school and sports in the community.

There has never been any significant complaint made by the Respondent about these activities, and in fact he has on occasion signed them up for same. [ 12 ] The income of the Applicant in 2010 was $42,766.44. [ 13 ] The Applicant was a good witness whose largest concern was trying to obtain some help with post secondary education expenses for Jamie in the near term and later to set a precedent for assistance for education for Brooke. She was logical, rational and tried to present the facts in a clear manner. [ 14 ] The Respondent is 45 years old.

He was born 13 October 1966 and was raised in the Ripley area and lived and worked in Goderich and its environs until 2005. He has a Grade 8 education. [ 15 ] The Respondent states that he injured his back in 2001 and he was off work for a number of years. His income was from WSIB. In fact WSIB continues to pay for his medications. [ 16 ] He worked for Whetstone Welding in the Goderich area and then in 2005 he was hired by Ashgrove Welding in Acton and worked for them until 2007. He had to stop that employment because of increasing problems associated with his back and the time he missed work because of same.

He then went on Employment Insurance. [ 17 ] It was at this point that he decided to become a long haul trucker because he thought the work would not be as rigorous. He can choose his own hours and as a long haul trucker he does not have to load or unload constantly, but rather only every four or five days. He says that he tried to get hired as a regular truck driver but was rejected because of the constant physical labour that would be involved. [ 18 ] So he decided to buy a truck and become an independent trucker working for a broker called Motrux.

He says that in some years he has had a reasonable income, but in 2010 and 2011 his income has declined because of truck repairs and losing work to come to court. [ 19 ] His reported income history is as follows: (a) 2001 $24,881.00

(b) 2002 $9,700.00 (c) 2003 $1,073.00 (d) 2004 $29,051.00 (e) 2005 $41,652.76 (f) 2006 $46,232.57 (g) 2007 $39,278.00 (h) 2008 $12,565.00 (i) 2009 $21,330.00 (j) 2010 $7,755.77 For the period 2001 to 2009 his average income was $25,045.00. [ 20 ] He says that he cannot do repetitive work and that he still takes a large number of pills to control pain, including oxycodone, under prescription. Dr. Michael J.

Dawson of Goderich wrote a letter dated 23 February 2011, that was received into evidence, confirming that the Respondent had a lower back injury in 2001 that led to surgery in October of 2001 on his lumbar spine. The doctor’s report went on to say that after the surgery Mr. Guikema continued to have lumbar pain and bilateral leg pain and has required daily analgesics and nerve blocking medication ever since.

The Respondent has had further evaluation and is not a candidate for more surgery. [ 21 ] In 2005 the Respondent moved to Brampton where he now lives with a new partner, Amanda Schison and her 12 year old son Gunner Schison. He says that Ms. Schison does not work out of the home. I have no information about her financial situation and what income comes into the home to support the child Gunner. This lack of information makes it very difficult to understand the Respondent’s true financial situation. [ 22 ] The Respondent’s Financial Statement reports an annual income in 2010 of $7,755.00.

This however is a product of the independent business he operates as a long haul trucker. There is limited detail available about the nature of this business. The reported sales are significant but the expenses are also high. [ 23 ] Included in the expenses is capital cost allowance or depreciation which is a non cash expense. The Respondent did not seem to understand what depreciation was. It was his evidence that this was a form of cash expense. [ 24 ] No good explanation was given by the Respondent as to why he would continue to operate his business if he was only making $7,755.00 per year.

It is hard to believe that the Respondent would continue in this business under the circumstances he describes. I am not convinced that the Respondent is giving the court the full set of financial information related to his income. [ 25 ] The Respondent was very unsympathetic to his son’s desire to go to school. He at first told the court that his son should just work, however he relented and proposed a plan where Jamie would attend Humber College and live with the Respondent.

He maintained that his offer of accommodations would be his contribution and that Jamie should pay for the rest. [ 26 ] The Respondent was not a good witness or advocate for his position. He was argumentative and manipulative. He shaded the facts to paint a picture of near poverty, without any real attempt to address what changes he could make to improve his situation. He did not seem to understand some basic business principles with respect to depreciation, or he chose not to understand them. The Respondent was not organized and provided very little documentation corroborating his evidence.

DISCUSSION RESPONDENT’S INCOME [ 27 ] Presently the Respondent is an independent long haul truck driver. He is self employed and owns his own truck. However he complains that it is not profitable. The reported income in the last few years confirms that fact. Whether this is from a lack of business aptitude, or force of circumstances related to the industry he is in, or a deliberate underemployment on his

part it is very difficult to know. The Respondent complains that his income has dropped because he has had to attend court and consequently has missed loads that would be profitable. This excuse is not accepted. He attended court on only a few occasions and if he managed his time properly he could avoid any serious loss of income. [ 28 ] The Respondent has not provided to the court the documentation that would allow a careful assessment of his business expenses. The only factor that is clear is that the depreciation or capital cost allowance that is deducted to arrive at his taxable income is a non cash entry.

As such it means that in his pocket there is much more cash than his stated income would suggest. This explains, in part, how it is that he is able to make the support payments that he does make. The money has to come from somewhere. Nevertheless the Respondent argued that the CCA was an out of pocket expense. This is clearly an error. [ 29 ] In

summary, the back problems are under control. If not he could not do the work he is doing now. The business is badly managed – and that is why his income has dropped – not because he had to attend court. This is illustrated by his lack of understanding about CCA. In my view the Respondent has chosen a business that suits his personality but is not reflective of his earning potential. In that sense he is underemployed. [ 30 ] The Applicant has produced information that suggests that an employed truck driver in the Toronto area can earn a

median hourly rate $20.00 per hour. This would result in an annual income of approximately $40,000.00. In my view a more reasonableincome amount to impute to the Respondent is $35,000.00 per year. This properly reflects his health issues and the historical fact that hisincome in 2001 was agreed upon at the $35,000.00 mark. [31] It seems to me that working as an employed truck driver with an established route is certainly within the capacity of theRespondent. He complains that he cannot do the repetitive work.

However in my view being an employed truck driver would involvemoving from place to place on a regular basis and is not repetitive work as it is generally understood. Periodically it requires loading andunloading. But he is doing that now – albeit with longer breaks in between. [32] It seems to me the Respondent’s larger reason for opposing the idea of an employed status is that he values hisindependence and ability to set his own schedule. There is nothing wrong with that goal – but it is unrealistic in light of his supportobligations.

He can return to that life after he no longer has a duty to help his children. [33] I impute income to the Respondent in the amount of $35,000.00 per year, both currently and for the last four years. RESPONDENT’S OBLIGATION TO PAY SUPPORT FOR JAMIE [34] Jamie was out of school for the year July 2010 to August 2011 and was over the age of 18. So child support is not payablefor that period of time. I accept that it was his intention to go to college but he did not have the financial resources to do so.

It is nowclear that he has enrolled in a Community College program and he is entitled to assistance from his parents in attending same. [35] The court order and the Separation Agreement both stated that the parents would contribute equally to those expenses. Ithink that Jamie is also required to contribute. [36] Moreover, parents have an obligation to assist their child in obtaining a post secondary school education. See Risen vRisen, , Cava v Cava, (ON SC), 2005 CarswellOnt 2287 and Liscio v Avram, .The child should contribute his or her its own resources to those educational expenses.

See Lewi v Lewi (ON CA), 28 R.F.L. (6th) 250. With parents who are able to afford to pay postsecondary school expenses it is inappropriate for the child to have toborrow and to have that credit facility form part of the calculation with respect to the parents obligation – see unreported Schafer vSchafer, Kitchener Court File 635-08, 26 July 2010.

However, where the parents are of modest means it may be necessary that the childtake advantage of the Ontario Student Assistance Program loans that are available and that the contributions of the parents should betempered accordingly. [37] In this case the Respondent has an obligation to assist with the post secondary expenses of Jamie both pursuant to theOrder and the Separation Agreement.

The parents are not well off and I think it is incumbent upon Jamie to also contribute to theseexpenses. [38] In my view Jamie should be responsible for 25 % of the education expenses and the parents should each be responsiblefor 37.5%. Although an argument could be made about a ratio based upon respective incomes, it is my view that the original Order andthe Separation Agreement clearly bind the parents to contribute equally, in reference to one another. I see no reason to vary from thatarrangement. [39] The expenses over two years are stated to be $29,997.81.

Those expenses are generally reasonable save and except thetransportation costs, which I reduce by one-half to $2,000.00. The total expenses are therefore $27, 997.81. The 37.5% share of theRespondent is $10,499.18. Spread over two years the monthly amount he should pay is $437.47. [40] An Order will go that the Respondent shall pay to the Applicant monthly from 1 September 2011 to and including 1August 2013 the sum of $437.47 on account of those educational expenses.

The payments should go directly to the Applicant so thatenforcement action can be effected through the Family Responsibility Office and that the child is not placed in the invidious position ofhaving to sue his father. [41] The same analysis should be put in place with respect to Brooke in due course, dependent upon her course of study andthe costs associated therewith. CALCULATION OF ARREARS [42] The arrears calculation relates to the child support payments that were made in accordance with the Order of 6 March2001.

That Order required the Respondent to pay $340.00 per month. [43] Support had been withdrawn from enforcement by FRO in 2003 and was reinstated on 1 September 2010. At that time theApplicant filed with FRO an Affidavit setting out what she claimed were the arrears. The information from the Applicant in this area isunclear. [44] After 1 September 2010 FRO kept track of the credits and debits. There now a Director’s Statement of Arrears dated 3June 2011 that states the arrears of support are $2,299.48.

However this number is based upon the information provided by the Applicantto FRO in the first instance. [45] The Respondent maintains that he has made all of his payments, although he includes in those payments $650.00 he haspaid to the children directly. [46] The burden is on the Applicant to establish the arrears. I do not think that burden has been met. The information providedby the Applicant with respect to the arrears prior to 1 September 2010 is not satisfactory. There is no documentation to support same. [47] However, I note that the Respondent says he paid $650.00 directly to the children.

This does not qualify as child support

paid. [48] Therefore I find that the arrears are made out in so far as payments were made to the children; that is to say there arearrears of $650.00 at the outset of the relevant period beginning 1 September 2010. After reviewing the calculations of charges andpayments to 1 June 2011 I have determined that the Respondent has paid $3,500.00 on account of a $3,400.00 obligation (for 9 months at$340.00). He has therefore over paid in that period by $100.00.

This is off set against his $650.00 of arrears and the arrears as at 1 June2011 are therefore fixed at $550.00. [49] Those arrears shall be paid over a two year period from 1 September 2011 to 1 August 2013 at the rate of $22.92. permonth RETROACTIVE SUPPORT [50] The Motion to Change seeks retroactive child support based upon the Child Support Guidelines from 1 August 2007. [51] The test for retroactive support is set out in S. (D.B.) v G. (S.R.); W. (L.J.) v. R. (T.A.); Henry v Henry; Hiemstra vHiemstra 2006 SCC 37 , [2006] S.C.J. No. 37.

The essential questions are: whether the Applicant had a reasonable excuse fornot seeking support earlier; the conduct of the payor; the circumstances of the child; and what hardship would be created by anyretroactive payment. [52] The Applicant commenced this proceeding on 7 July 2010. [53] The Order of 6 March 2001 required the Respondent to advise of his changes of employment and give to her each year acopy of his Income Tax return. The Applicant testified that she asked for the Income Tax information periodically but never received ananswer. I accept her evidence in that regard.

She was entitled to the Income Tax information and did not receive it notwithstanding herrequests. She was rebuffed by the Respondent. She made reasonable non aggressive efforts to get the information and was finallymotivated to go to court to obtain same when the oldest child wanted to go to college. This is completely rational. She did not wantconflict with the Respondent. She only went to court when there was no other option. [54] The Respondent has been uncooperative and resistant to providing information.

He has paid the children monies directlyand has ignored the request for assistance with respect to special expenses and education expenses. He was not prepared to enter into anydiscussion about reviewing support in keeping with the consent Order of 6 March 2001. Most importantly he is resistant to educating hischildren. This is unacceptable. [55] The children need continued support in keeping with the ability of the Respondent to pay based upon his reasonableincome.

And certainly Jamie and Brooke are entitled to receive an education. [56] In terms of hardship it is clear that the extra payments will be difficult for the Respondent. However if the payments arespread out over time the quantum is not such that it is impossible or unrealistic. [57] In this case it is clear that the Applicant is entitled to retroactive child support. This proceeding started in July of 2010. Itherefore find that she is entitled to retroactive child support for three years prior to July of 2010.

This means that the recalculationsshould commence as at 1 July 2007. [58] I have first determined that the support recalculations should begin with the period of three years from July 1 2007 to 30June 2010. In that time period the Child Support Guidelines indicate that child support for two children at an income level of $35,000.00is $521.00 per month. In fact the Respondent paid $340.00. He therefore underpaid by $181.00 per month for 36 months.

The totalunderpayment is $6,516.00. [59] He then paid child support through to July of 2011 at the same $340.00 per month, when in fact he should have beenpaying for one child at the rate of $325.00, because Jamie was working at Zellers. This is an overpayment of $15.00 per month for 12months, or $180.00. This should be deducted from the $6,516.00 resulting in a net underpayment of $6,336.00. [60] This underpayment should be paid by the Respondent to the Applicant over 24 months at a rate of $264.00 per monthfrom 1 September 2011 to and including 1 August 2013.

SECTION 7 EXPENSES [61]

Section 7 expenses for both children incurred by the Applicant should be contributed to by the Respondent. TheApplicant has provided a

summary of those expenses at Tab 14 Exhibit K of the Trial Record. She testified that those were in fact theexpenses. I accept that evidence. The expenses are reasonable. [62] The

summary claims historical

section 7 expenses for 2008, 2009 and 2010 only. They do not include expenses for Jamieafter he left high school. They do not include a claim for 2007, although the ruling on retroactivity would allow for same. The total thatis claimed is $3,841.31. [63] The Order of 6 March 2001 provided that those expenses would be shared equally. I see no reason to do anythingdifferent. The share of the Respondent is therefore $1,920.66. [64] An order will go that the Respondent shall pay that amount to the Applicant in instalments of $80.02 per monthcommencing 1 September 2011 until paid in full.

ONGOING SUPPORT [65] Ongoing support should be fixed at $325.00 per month for one child, Brooke, at an imputed income level of $35.000.00.

Those payments have been accounted for in the calculation of retroactive child support and arrears through to the end of June 2011. Therefore the ongoing child support for Brooke at a rate of $325.00 per month should be paid by the Respondent to the Applicant commencing 1 July 2011.

SUMMARY [ 66 ] In sum the court orders the following: (

a) The Respondent is responsible for education expenses for Jamie in the total amount of $10,499.18. This amount shall be paid over two years at the rate of $437.47 per month from 1 September 2011 to and including 1 August 2013. (

b) There are child support arrears owing by the Respondent to the Applicant in the amount of $550.00. Those arrears shall be paid over a two year period from 1 September 2011 to and including 1 August 2013 at the rate of $22.92 per month. (

c) The Respondent owes to the Applicant on account of retroactive child support the sum of $6,336.00. This amount shall be paid by the Respondent to the Applicant over a two year period at a rate of $264.00 per month from 1 September 2011 to and including 1 August 2013. (

d) The Respondent owes to the Applicant on account of special expenses the sum of $1,920.66. An order will go that the Respondent shall pay that amount over two years in instalments of $80.02 per month from 1 September 2011 to and including 1 August 2013. (

e) The Respondent shall pay child support to the Applicant for ongoing child support for the child Brooke based upon his imputed income of $35,000.00 in the amount of $325.00 per month commencing 1 July 2011. COSTS [ 67 ] I note that the costs Order requiring the Respondent to pay costs to the Applicant made 28 September 2010 for $300.00 has not been paid. [ 68 ] The Applicant has been successful in this case. She is not represented. She sets out in the trial record that she has further costs of $363.07. I do not doubt that for a moment. [ 69 ] The Respondent shall forthwith pay costs to the Applicant for the trial fixed at $363.07. Released: 6 December 2011 Signed: “Justice Brophy”