IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Luke v. Luke, 2007 NSSC 235 Date: 20070803 Docket: 1201-057326 Registry: Halifax Between: Rosamond Hannah N. Luke v. David F. Luke Respondent Judge: The Honourable Justice R. James Williams Heard: March 28 29, April 12, 2007 in Halifax, Nova Scotia Counsel: Joseph M. J. Cooper, Q.C., for the Petitioner B. Lynn Reierson, Q.C., for the Respondent By the Court: [1] The parties before the Court, Rosamond Luke and David Luke, have made frequent appearances in this Court over the past number of years. They each have brought variation applications under the Divorce Act, 1985. Those applications relate primarily (though not exclusively) to the issues of spousal support, child support and access. [2] The parties were married on September 4, 1982 in London, United Kingdom. They had three children: William Luke, born February 8, 1984; April Luke, born April 5, 1988; and Sarah Luke, born September 24, 1993. Ms. Luke has, since before the divorce, lived in Halifax. Mr. Luke works for the United Nations. At the time of or shortly before the divorce, he lived in South Africa. He now lives in Geneva, Switzerland. He has remarried. [3] The Corollary Relief Judgment was granted May 27, 2004. It was amended September 23, 2004. On October 26, 2006 an “Emergency Variation Order” was granted by Justice Gass of this Court. The relevant portions of these orders are outlined in “Appendix I” to this decision. [4] The parties have had ongoing disputes since before the divorce. They are chronicled in other proceedings and the pleadings. do not intend to review the unfortunate history of disputes in this decision. have considered it, however, in coming to the decisions have. APPLICATION TO VARY SPOUSAL SUPPORT [5] The Corollary Relief Judgment (CRJ) of April 2, 2004 provides, at paragraph 8: 8. The Husband shall pay spousal support to the Wife in the amount of $3,100.00 per month beginning on April 1, 2004 and continuing on or before the 1st of each month until the earlier of: (A) Twelve months after the Wife graduates from the M.B.A. program in which she is currently enrolled (graduation no later than May 2005); or (B) Six months after the Wife withdraws from the M.B.A. program in which she is currently enrolled; or (C) The Wife obtains employment. Therefore, on or before June 1, 2006, the Husband’s obligation to provide spousal support to the Wife shall terminate absolutely. [6] Ms. Luke’s Application to Vary was filed September 21, 2006. The spousal support order terminated prior to this date. [7] Section 17(10) of the Divorce Act, 1985 provides: s. 17(10) Notwithstanding subsection (1), where spousal support order provides for support for definite period or until specified event occurs, court may not, on an application instituted after the expiration of the period or the occurance of the event, make variation order for the purpose of resuming that support unless the court is satisfied that (a) variation order is necessary to relieve economic hardship arising from change described in subsection (4.1) that is related to the marriage, and (b) the changed circumstances, had they existed at the time of the making of the spousal support order...would likely have resulted in different order. [8] Section 17(4.1) states: S. 17(4.1) Before the court makes variation order in respect of spousal support order, the court shall satisfy itself that change in the condition, means, needs or other circumstances of either spouse has occurred since the making of the spousal support order...and in making the variation order the court shall take that change into consideration. [9] Section 17(10) of the Divorce Act, 1985 applies to this application to vary spousal support. Ms. Luke states in her affidavit of March 21, 2007: 9(v) ...I respectively submit that spousal support should be extended up to and for one year past my eventual graduation dated October 2006. [10] Ms. Luke graduated with her M.B.A. in October 2006. It had been anticipated that she would graduate in May 2005. [11] Ms. Luke asserts that the following “changes” trigger this application: a. That pursuant to paragraph of the Corollary Relief Judgment spousal support for me was to cease one year after my anticipated graduation from my MBA program in May 2005. That at the time of negotiating the Agreement it was thought that the children would be in Geneva with their father and would be able to spend full time concentrating on my MBA program... (Paragraph 9(a) of her Affidavit of March 21, 2007.) Spousal support appears to have been dealt with in Justice Hood’s decision of April 1, 2004. There is no reference to an agreement indeed Justice Hood stated (at p. 19) “spousal support was one of the most contentious issues between the parties”. Further, the Corollary Relief Judgment provided (by apparent agreement) that the children remain in Ms. Luke’s care (having been placed in her care by the decision of Justice Dellapinna of October 27, 2003 following five-day trial). The assertions in paragraph 9(1) of Ms. Luke’s Affidavit are less than accurate. b. That her health began deteriorating after the CRJ as she was performing the multiple roles of mature student, and day to day parent of the two girls (who were then home) (clause 9(o) of her March 21, 2007 Affidavit). There is no evidence of health problems that would impair her. The order contemplated her parenting the girls she was receiving significant amount of child support. There is no change in circumstances nor change in circumstances related to the marriage demonstrated here. c. That the emotional and financial stress and demands from her M.B.A. program caused her to have focus on the children because their grades were deteriorating, they were depressed and “even one of them was suicidal” (clause 9(p) of her Affidavit). Ms. Luke also indicated that April developed Trichotillomania (a psychological condition that involves strong urges to pull one’s hair) in February 2003. This required special attention with the assistance of the family doctor (clause 9(q) of her Affidavit). Almost no evidence was put forward to indicate the children’s grades deteriorated to any significant degree. Mr. Luke asserted that the children’s grades remained consistent from 2003 through 2005. He indicates he knows nothing of the children being depressed “much less that one was suicidal”. There were no particulars or specifics related to these assertions provided by Ms. Luke. Finally, Mr. Luke asserted in his Affidavit (clause 49(l)): 49(l) April has skin condition that is similar to one my mother has. No credible medical evidence has been presented to the....Court regarding April having medical condition that causes more than minor irritation... cannot conclude from the evidence before me that the children’s grades deteriorated to any significant degree since the divorce. The evidence indicates that these children have been active achievers. cannot conclude from the evidence before me that the children suffered from mental health issues that would impact upon spousal support. [12] Ms. Luke’s academic record from Dalhousie University is filed with the Court. That record indicates the following: In the fall of 2003 Ms. Luke received an in Bus. 5503 Quantitative Decision-Making. All her other marks in the program were A’s and B’s. By the end of the summer of 2005 Ms. Luke had completed all of her course works but one course. In the fall of 2005 she again took Bus. 5503 and received B- grade. This is the only course on her transcript that fall and the last course on her transcript. [13] The divorce took place in April 2004. The spousal support ended in June 2006. [14] have no explanation or rationale before me as to why Ms. Luke appears to have finished her course work in December 2005 (six months before the spousal support order ended) yet did not graduate until October 2006. [15] Ignoring the fall of 2005 (when she took but one course), there seems to be no reason for her not to be employed or actively seeking employment since January of 2006. [16] Ms. Luke filed documents (at Tab 11 of her Exhibit Book) that are referred to as “Rosamond Luke’s Business Development Log”. It (as did her Affidavit) indicated that since September 2006 she has been pursuing the development of project known as AWEDANS (African Woman Empowerment and Development Association of Nova Scotia). She hoped this would result in salaried position for her in the fall of 2007. The log refers to meetings, attending conferences, receptions, presentations and some other largely unrelated activities, including attendances at Court. [17] An application to vary is not an opportunity to appeal or retry the previous proceeding/order. (Chamberlain v. Chamberlain, 2002 Carswell N. B. 33 (NBCA).) am, as understand the law, to treat the existing order as correct (W.C.P. v. C.P. (2005) 2005 BCCA 60 (CanLII), B.C.J. No. 179 (BCCA)) and to vary it only if an applicant can prove material change in circumstances. Before variation may occur section 17(10) requires that the change(s) be related to the marriage, and further that had the change(s) been known at the time of the original order it (they) would have been likely to result in different order. The onus to show that such changes have taken place is on the applicant here, Ms. Luke. [18] Ms. Luke has not met that onus. There is no change in circumstances related to the marriage that would, had it been known at the time of the original order, resulted in different order of spousal support. The Corollary Relief Judgment contemplates the “late” completion of Ms. Luke’s M.B.A. program. It placed the children in her care. There is no significant change in the children’s circumstances. There is no medical evidence of their or Ms. Luke’s having post CRJ condition that impacted on her ability to pursue self-sufficiency. There is no explanation for her graduating ten months after completing her course work. There is no evidence of her seeking employment apart from her pursuing the establishment and funding for AWEDANS. However laudable this proposed organization may be there is no reason for Mr. Luke to fund its establishment. Ms. Luke is responsible for her own choices. [19] The application to vary spousal support is dismissed. APPLICATION TO VARY CHILD SUPPORT [20] The parties have made a series of cross-applications concerning child support. [21] There are three children William (b. February 9, 1984), who is 23; April (b. April 5, 1988), who is 19; and Sarah (b. September 24, 1993), who is approaching 14. The Corollary Relief Judgment (CRJ) provides that they are in the custody of Ms. Luke. [22] The CRJ provides: 4. For the purpose of fixing child support, the Father’s income is found to be $12,759.73 US per month which is an annual income of $153,116.76 US or $203,706.00 Can. (On current conversion rate of 1.3304) based on the financial information before the court at the time of the binding settlement conference in December, 2003. The Father’s income shall not be grossed up pursuant to the Child Support Guidelines s. 19 because there is regular deduction made from the Father’s income by his employer which is akin to an income tax deduction that would be made if the Father were resident and working in Canada. 5. The Father shall pay base guideline child support to the Mother for the three children in the amount of $3,088.20 per month retroactive to December 20, 2003 (pro-rated for December) and payable on the first day of each month until the children are no longer children of the marriage as defined by the Divorce Act. The quantum of child support shall be adjusted annually based on the Father’s annual income for the previous calendar year. On or before January 15th of each year each party shall provide to the other proof of his or her annual income for the previous calendar year. 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. 7. Armbrae Academy has invoiced the Luke family for the full year of private school fees and expenses for the 2003-2004 academic years. Attached is copy of said invoice. Armbrae Academy’s invoice for 2003-2004 shall be paid 70% by the Father and 30% by the Mother (with the exception of tutoring expenses of $4,000.00 for each child for which he is 100% responsible for). The Father shall be responsible for 100% of the school fees and expenses incurred in South Africa. Armbrae Academy’s fees and expenses shall be paid as they were prior to separation, paid directly to Armbrae Academy’s bank account (particulars attached), according to the U.N. policy of payment for private school fees (i.e., portion of fees for an academic year are paid in advance and the balance of these are paid upon confirmation that the children have been in attendance at the educational institution for the academic year in question). With respect to ensuring reimbursement for and/or payment of private school fees, any shortfall between fees and expenses covered by the U.N. and the total invoice rendered by Armbrae Academy shall be paid by the Father. The requirement for the Father to pay the girl’s Armbrae Academy fees and expenses is conditional upon the Mother and the administration of Armbrae Academy complying with the U.N. policy with respect to ensuring reimbursement for and/or payment of private school expenses incurred for the benefit of the children of U.N. employees. Any reimbursement due from the Father’s employment as result of the payment of private school fees shall be retained by the Father. [23] On October 16, 2006 an “Emergency Variation Order” was granted by Justice Gass of this Court. It provided: 1. David Luke shall pay base guideline child support for the three children of the marriage, based on his current income, in the amount of $3,550.00 beginning on October 1, 2006 and continuing on the 1st of November and the 1st of December, 2006. Child support shall be adjusted according to the formula set out in the Corollary Relief Judgment as of January, 2007. 2. Paragraph of the Corollary Relief Judgment shall also apply to April Luke “in the same manner as it was for William”. 3. decision with respect to William Luke’s status as “child of the marriage” is deferred. Pending decision on that issue, David Luke shall pay to William Luke, as contribution to his post-secondary education 50% of the 1/3 of the table amount of child support payable pursuant to this Order. At the current child support level, this requires payment directly to William Luke in the amount of $592.00 per month and reduces the child support guidelines table amount payable directly to Rosamond Luke to $2,958.00 per month. The appropriate adjustment to the payment to both William Luke and Rosamond Luke shall be made according to the terms of the Corollary Relief Judgment for January, 2007. [24] The Divorce Act, 1985 provides with respect to variation of child support: s.17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. RETROACTIVE SUPPORT VARIATION [25] claim for retroactive variation of child support (beyond January 1, 2007) was referred to at times but not emphasized or elaborated upon in detail in the evidence. Given the limited evidence before me addressing this issue, the history of this matter and disputes over everything from contact lenses to air fares and Mr. Luke’s payment of a. 75% of the basic education costs of the children through his benefit plan b. the other 25% himself c. monthly allowances (of hundreds of dollars) and “extras” (such as April’s computer) to William and April d. what was believed to be the full table amount for each child to Ms. Luke (even while William, then April were away) conclude that it is not appropriate that there be any variation prior to January 1, 2007. MR. LUKE’S INCOME [26] Mr. Luke’s current income is, according to his March 27, 2007 Statement of Earnings, $205,4770.96. His 2006 earnings were $200,195.00 (U.S.). [27] Ms. Luke disputed his income level in January of 2007 she and Mr. Luke’s counsel went “back and forth” on figures figures that were differing largely based on exchange rates (between the U.S. and Canadian dollars). [28] Additional uncertainty arises from the orders made the “Emergency” Variation Order of October 16, 2006 orders child support table amount of $3,550.00 for three children based on his then current income (which is not recited in the Order) and states that in January 2007 child support would be adjusted as provided by the CRJ. The CRJ provides that each year’s child support be based on last year’s income, not current income. In his submissions, Ms. Luke’s counsel accepted that adjustments based on last year’s income were acceptable. [29] This is situation that requires some certainty. [30] Mr. Luke will pay child support based on his actual income each year. For 2007 his income will be treated as $205,195.00 U.S. subject to the adjustment outlined below. [31] The Bank of Canada posts exchange rates. The closing U.S. exchange rate as of December 31, 2006 was 1.1654 (Bank of Canada www.bankofcanada.ca/en/rates/can_us_close). am taking Judicial Notice of these rates. [32] Mr. Luke shall pay support as follows: [33] For 2007 Mr. Luke will pay child support based on his current salary he will pay table support. (a) In 2007, month to month based on his stated income of $205,470.96 U.S. December 31, 2006 exchange rate of 1.1654 $239,455,85 Cdn. subject to the following adjustment (b) On or before February 15, 2008 he will disclose his actual 2007 income to Ms. Luke. The U.S./Cdn. Exchange will be determined by the average monthly closing rate between U.S. and Canadian currencies for the 12 months in 2007. The 2007 child support payable will be recalculated based on this number. [34] If the result is that he has underpaid he will “top up” support for the year paying that amount to whomever that top up is owed to within two months of February 15. If he has overpaid it will be “clawed back” again, from whomever “owes” him monies over three month payment period. [35] In 2008 Mr. Luke will provide Ms. Luke with his estimate of his 2008 income by January 15, 2008. The exchange conversion will be based on the December 31, 2007 exchange rate. The 2008 child support will be subject to the same exchange adjustment process as outlined above by February 15, 2009. [36] Subsequent years will follow similar pattern. [37] While complicated these are sophisticated parties and the above captures variations (up and down) in both Mr. Luke’s salary and U.S./Cdn. exchange rates and means his child support is based on current income. These are all variables that have been the subject of ongoing disputes between the parties. While complicated, it is fair and as accurate as possible. [38] William is 23 years old. The Emergency Variation Order of October 2006 provides: 3. decision with respect to William Luke’s status as “child of the marriage” is deferred. Pending decision on that issue, David Luke shall pay to William Luke, as contribution to his post-secondary education 50% of the 1/3 of the table amount of child support payable pursuant to this Order. At the current child support level, this requires payment directly to William Luke in the amount of $592.00 per month and reduces the child support guidelines table amount payable directly to Rosamond Luke to $2,958.00 per month. The appropriate adjustment to the payment to both William Luke and Rosamond Luke shall be made according to the terms of the Corollary Relief Judgment for January, 2007. [39] The Corollary Relief Judgment provides: 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. [40] Ms. Luke asserts that he remains child of the marriage and that Mr. Luke should pay all of William’s university expenses, including travel. [41] Mr. Luke asserts that his son is no longer child of the marriage and that he will support his son, but that the amount and degree of support should be left to them outside the purview of the Court. [42] Mr. Luke receives reimbursement for most educational and post-secondary expenses his children incur through his employer, the United Nations. The benefit extends to undergraduate programs only. [43] William is 23. He graduated from McGill University in July 2006. Mr. Luke paid all his expenses at McGill (including allowances of $800 $1000 per month over and above housing, books, tuition, etc.) most (75%) of which were reimbursed to him as indicated above. In addition, Mr. Luke paid the full table amount of child support for William to Ms. Luke until Justice Gass’ October 2006 order. [44] William’s affidavit of March 2007 indicates: 10. THAT it was my father who encouraged me to attend law school at the University of Leicester in the U.K. That at the time of discussing finances my father indicated and do verily believe that would no longer be eligible for UN support and thus would have to contribute to my educational costs. That it was arranged that would take out $10,000.00 Nova Scotia Government Student Loan to help defray some of the tuition cost and expenses and that would take summer job to help pay for the cost of airfare, and my father would cover the remaining cost of going to school in England. That my father indicated that he would pay further 400 pounds per month for living expenses while was in England. Again, at no time was there any discussion about financial contribution from my mother. 11. THAT pursuant to the arrangements, had obtained summer job at Dugger’s Menswear in Nova Scotia and earn enough money to pay for my airfare to England. As well, am presently looking for part time job in Leicester to help with my expenses during the breaks between semesters as is normal in England. My father in the meantime, indicated that he would cover the balance of the cost from his own pocket and specifically, would designate rent from his home in Pretoria, South Africa, to cover off my educational costs. [45] William, and the other children have been drawn into this, and other legal proceedings between the parties by Ms. Luke. Her actions in this regard have been inappropriate. [46] Mr. Luke states (in his affidavit of March 23, 2007): 13. My contribution to William’s living expenses depended upon his living circumstances at the time (ie. his needs) and upon my other financial obligations. In addition to my monthly support to William, he also received funds on an annual basis from Canadian Scholarship Trust (education savings) Plan that was taken out for him when he was born. These funds amounted to $2,600.00 Can. Per year and were paid directly to William’s account. There were also similar CST plans for April and Sarah, established when each of the children were born. In 2000, Rosamond cancelled the education savings plans with the Canadian Scholarship Trust (CST) Fund had taken out for April and Sarah. The payout was $2,722.87 for April’s plan and $940.89 for Sarah’s plan. By cancelling the plans prematurely, we lost the interest that had been earned. was unaware of what she had done and continued to make monthly provision for payment to these plans until discovered, in June 2002, that Rosamond had cashed them in. Although Rosamond has previously indicated that they were discontinued for non-payment, this is not true. 14. During the summer months during William’s undergraduate degree, he occupied his time as follows: a. 2003 Halifax summer employment b. 2004 Halifax summer employment c. 2005 weeks working on community project in St. Lucia d. 2006 Halifax summer employment plus weeks vacation in Geneva, Lugano and Amsterdam 15. William indicates at paragraph of his Affidavit that “...all my conversations about post graduation studies was carried on between myself and my father without any input from my mother...” and April indicates at paragraph that her mother had no “...input into what university would attend”. Rosamond has been so deeply involved with the children that she calls regularly when they are with me and asks questions about what have fed them during their last few meals in my care. It is inconceivable that Rosamond had no input, in discussions with the children, as to their choices regarding their educational pursuits as she plays dominant role in the children’s lives. 16. With respect to William’s evidence regarding our discussions and the arrangements we made for my contribution to his post-graduate studies in law, say: (a) ... The UN Education Grant scheme for children of UN employees no longer applies to William. As part of the LLB with French programme that William is taking, he is due to spend the third year at Strasburg University in France. This third year of the programme is subsidized by Leicester and Strasburg Universities and anticipate that there will be no tuition fees. (b) .. My commitment to William has not changed since Rosamond has brought her “emergency” application last fall regarding April’s expenses as alleged by William. My new family have not changed my “attitude” as alleged by William at paragraph 22 of his Affidavit. It is true, however, that my ability to continue to provide for the children’s educational needs is being eroded by the cost of enforcing access and defending multiple legal proceedings brought by Rosamond. 17. To date, have provided approximately £5000.00 (Cnd. $10,000.00) to William in addition to expenditures to assist William to settle down at Leicester University. travelled personally to Leicester to help William settle in and visited him in February 2007 to see how he was getting on. 18. William has not lived on regular basis at home with his mother for several years. He has lived at home while working in Halifax for periods of time during summer breaks. have paid base guideline child support for William up to and including the Order of Honourable Justice Gass dated October 16, 2006. William turned 23 years old on February 8, 2007. 19. ask the Court to discontinue any requirement that pay child support to Rosamond Luke for William. also ask this Court to take into consideration when determining the global support issues my commitment to assist William in funding his law school education for the next four years up to $10,000.00 Cnd. per year. [47] William, born February 8, 1984, is 23 over the age of majority. [48] Section 2(1) of the Divorce Act provides: s. 2(1) “child of the marriage” means child of two spouses or former spouses who, at the material time, ... (6) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [49] Mr. Luke’s evidence, the family history of emphasis on education, and William’s career plan and apparent aptitudes lead me to conclude that he remains a “child of the marriage” as defined by the Divorce Act, 1985. [50] There are number of “changes in circumstances” since the CRJ. William is older, more independent. He has been repeatedly drawn into economic disputes between his mother and father. He is no longer eligible for the U.N. education benefit programs referred to in the CRJ. The order made in October 2006 was meant to be temporary. [51] The Child Support Guidelines (s. 3(2)) suggest that support, for child over the age of majority be (if appropriate) determined as if the child is under the age of majority essentially the table amount (as starting point). [52] In my view the future use of the presumptive Guideline approach for William is inappropriate and unsuitable. conclude that having considered the following: (a) do not have details relating to William’s income student loans, summer employment, or if there is any part-time employment while he is in school. The evidence is deficient in this regard. (b) The meaningful communication concerning economic support for William’s education has been almost entirely directly between his father and himself. He is attending university away from his mother’s home in Halifax. He actually resides in her home on an intermittent basis only. (c) For most of the year there is no sharing of common expenses with Ms. Luke. He lives for all intents independently (see N. V. N. 2005 BCCA (CanLII), 2005 Carswell BC 10 (BCCA)). (d) William is well over the age of majority and, seen independent of the conflict between his mother and father, appears responsible. (e) William is enmeshed in and has become player in the conflict between his parents. He has, to significant degree, been drawn into this by the actions his mother. table amount of support paid to his mother will do little more than leave him in the middle of this conflict. [53] The Divorce Act, 1985 provides in part: s. 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6) In making variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. s. 15.1(1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to pay for the support of any or all children of the marriage. (3) court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. [54] What amount of child support is appropriate for William having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child? What conditions should be placed on the order? [55] There are series of factors (including those that have referred to above) that are relevant: have limited information concerning William’s employment, tuition, loans, spending, expenses, etc. Taking her evidence most favourably, Ms. Luke indicates she has contributed very limited monies to his education. She has responsibility to do more in the future. have considered the fact that she has maintained home in Halifax (though she has done so virtually entirely on the back of the child support she has received in the past and provided him some funds for travel). Child support is not spousal support. [56] The CRJ, clause 6, states that Mr. Luke’s responsibility to pay (presumably all) of “William’s educational expenses” is “conditional” upon compliance and eligibility for with the U.N. education reimbursement policies for employees’ children. William no longer qualifies for that benefit. Mr. Luke no longer is obliged to pay all of these expenses. [57] The existing order (that of Justice Gass from October 16, 2006) provided that that 50% ($592) of 1/3 ($1184) of the Table Amount of child support be paid directly to William (subject to the adjustment in January 2007 have outlined in addressing Mr. Luke’s income). This order (with the amount adjusted) will remain in effect to August 31, 2007. [58] conclude that it would be inappropriate to have William’s child support payment made directly to Rosamond Luke. To do so would continue William’s enmeshment in his parents’ conflict. It appears that significant portion of payments of support for William, paid to Ms. Luke are not benefiting William in any but most indirect fashion. The payment should be made directly to William. [59] Beginning September 1, 2007 Mr. Luke’s obligation to pay child support for William will be satisfied by his payment to William, or to third parties (other than his mother) as requested by William of $10,000.00 Cdn. (paid between September 1, 2007 and June 30, 2008). If they do not agree on the payment schedule Mr. Luke will pay William $4000.00 September 15, 2007 and $1000.00 on the 15th day of the following six months. [60] The same arrangement will apply for the 2008 2009 academic year provided William remains in his current program. [61] William will turn 25 in February 2009. Once Mr. Luke satisfies his child support obligation to William for the 2008 2009 academic year William will cease to be child of the marriage as defined by the Divorce Act. His father’s (and mother’s) contribution to his education at that point will not be matter for the Court. have no reason to doubt Mr. Luke’s indication that he would contribute $10,000 to William’s education for two years beyond the order have made if circumstances allow that. have attempted to create some certainty, clarity with this order. [62] am aware that William “may” not have tuition fees in his third year of the program. If he and his father agree in writing to defer portion of his father’s 2008 2009 obligation to the following year, that would in my view, be enforceable by the Court. From the evidence before me would not anticipate that that would be necessary. [63] April turned 19 on April 5, 1988. Both parties acknowledge that she remains “child of the marriage” as defined by the Divorce Act. She is in full time attendance at university in Ottawa. She has finished her first year of university. She is home to her mother’s residence during the summer months, and some holidays. Presumably she does or could work. These are changes in circumstances since the CRJ. [64] Clause of the CRJ provided: 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. [65] Mr. Luke proposes that this clause apply to April (and Sarah’s) post-secondary education. The U.N. benefit plan reimburses Mr. Luke for 75% of expenses such as tuition, residence, meal plan, books. Mr. Luke asks that the arrangements for payment of post-secondary expenses for April (and Sarah) be as stated in clause of the CRJ. Ms. Luke agrees. The order will be adjusted accordingly. [66] April, like her brother William, has been caught between their parents in their economic disputes. Ms. Luke asks that she receive the “table amount” of support for April, Mr. Luke pay the university expenses referred to in “clause 6" and that Mr. Luke provide April with discretionary allowance of something in the vicinity of $700/month. Mr. Luke has paid the educational expenses and some $400/month in discretionary monies to April. While doing so he paid the full table amount of support to Ms. Luke. He also advanced April $1700.00 in September 2006 to purchase laptop. [67] April Luke’s affidavit of March 2007 provides, in part, 6. THAT based on these assurances have discussed with my father what university should attend and the different expenses involved in each university. That at no time was our mother part of these discussions, nor did she have any input into what university would attend. That from these discussions with my father we decided would attend Carleton University in Ottawa. That subsequent to arriving at the decision to attend Carleton University, my father made all of the arrangements for me to enroll and to pay my tuition. That during these discussions supplied my father with list of my expenses for settling in at Carleton University which he agreed to pay and indicated that he would also provide me additional monies monthly for living expenses, once arrived in Ottawa. 7. THAT upon arriving in Ottawa on or about the 1st of September, 2006, called my father in Geneva to give him my new cell number and to get my spending allowance. At that time my father advised me that he would not be spending any additional money on me other than my tuition and laptop and that he would not be supplying me with any expenses for settling into Ottawa, nor would he be providing me with living allowance on monthly basis, contrary to what he had done for William. That it was my father’s statement that for any money that needed for living expenses and/or for living allowance should be obtained from my mother as he was paying my mother child support. 9. THAT because of my father’s failure to provide me with living expense for September, the first month at Carleton University, had to borrow $400.00 from my brother William, to cover off my living expenses for the month of September. That subsequently, upon further discussions with my father, he did agree to pay $400.00 month for living and incidental expenses however, it does not adequately cover my monthly expenses. 10. THAT also, because of my father’s failure to cover the cost of the initial “settling in” expenses my mother had to pay for the necessary items needed to set up housekeeping in Ottawa, such as towels, bed sheets, blankets, etc., as well, my mother paid for my ticket to Ottawa and as well her return ticket from Ottawa. 11. THAT my present situation is that my father is now paying $400.00 per month to cover my living expenses while in Ottawa however, he has indicated to me that any extra money need beyond the $400.00 will have to come from my mother. Financial contributions from my mother was never discussed during the time the decision was made by myself and my father. That my present monthly financial needs while living in Ottawa are as follows: a. $250.00 necessities: clothing, seasonal footwear, hair treatment/products, personal items b. 65.00 entertainment, church offering c. 90.00 sports, accessories d. $125.00 campus card, laundry, additional food (including weekend meals) e. 50.00 bus tickets f. 75.00 miscellaneous: printing, inkjet, stationary, photocopying TOTAL $655.00 13. THAT during the time am not in residence at university my principle place of residence is with my mother in Halifax, Nova Scotia. That spend most of my summer vacation, Christmas and Easter break, and other school vacations with my mother. The only time do not spend with my mother is during the time am visiting with my father. [68] Mr. Luke proposed that he pay the “clause 6" tuition and claimable expenses for April and that in addition he pay her an allowance being the difference between the table amount of support for two children (April and Sarah) and one child (Sarah) for the months of September to April. He proposes that he pay the one child (Sarah) table amount of support to Ms. Luke for the September April time frame, and the two child amount for May September (being the time when April is home). [69] Using the income amount previously addressed, the table amount of child support (apart from the eligible education benefits) would be as follows: Mr. Luke’s income $239,455.85 Table amount of child support for one child $1205 $644.08 (.0072 $89,455.85, his income over $150,000) $1849.08 for two children $1913 $1001.91 (1.12 $89,455.85, his income over $150,000) [70] The difference between the table amount of support for one child, and two is $1065.83. [71] Mr. Luke states in his affidavit, clause 23(c) 23(c) Paragraphs and 11 of April’s Affidavit deal with the spending money issue. determined that $400.00 per month was sufficient spending money for April through discussions with her and reviewing the Carleton University website. April’s Affidavit confirms that $400.00 per month was adequate spending money while full base guideline support was being paid to Rosamond, in part to pay for April’s clothing, footwear, hair care and personal items. [72] Mr. Luke undoubtedly wants relief from situation where despite his having paid significant amount in table amount of support to Ms. Luke she assumes very limited responsibility for the economic support of April when she is away at school. His assertion that sheets and towels for April might have come from home is reasonable one. [73] His proposal is one that has him pay: a. The 25% of “core” university costs April has that are not covered by his U.N. benefit plan for so long as April and her educational pursuits qualify for that plan. b. The difference in the table amount of support for two children versus one. c. April’s university costs with almost no economic contribution from Ms. Luke or April. d. April some $300 $400/month (over months) more than she states she needs which should be more than reasonable contribution to any travel or other expenses April may have. April and Ms. Luke have some responsibility for such additional expenses. e. Ms. Luke some $4000.00 towards “maintaining home” and providing for April during her time(s) at home (including some contribution to April’s travel). f. Leaves all of April’s earnings or loans (if any) to her discretion. (I have little or no evidence of April’s income). [74] I conclude that Mr. Luke’s proposal should be adopted by the Court effective September 1, 2007. Mr. Luke’s child support payments (apart from the “clause benefits”) for April will be payable as indicated above (effective September 1, 2007) as follows: September 1, 2007 through and including April 1, 2008 $1065.83/month (subject to adjustment in 2008) to April May 1, 2008 August 1, 2008 the appropriate 2008 amount to Rosamond Luke. [75] Until September 1, 2007 the “Emergency Variation Order” (subject to adjustment for Mr. Luke’s income) will remain in effect. [76] Sarah is approaching 14. The table amount of child support payable for Sarah is (subject to adjustment) $1849.08. This amount shall be paid to Ms. Luke from January 2007 forward. [77] Sarah will be entitled to the post-secondary benefits (as available to Mr. Luke) in the same fashion as William and April. [78] Mr. Luke pays Sarah’s expenses at Armbrae Academy (and gets reimbursed for 75% of those expenses) and the Table Amount of support. [79] Clause of the CRJ provides, in part, 7. Armbrae Academy’s fees and expenses shall be paid as they were prior to separation, paid directly to Armbrae Academy’s bank account (particulars attached), according to the U.N. policy of payment for private school fees (i.e., portion of fees for an academic year are paid in advance and the balance of these are paid upon confirmation that the children have been in attendance at the educational institution for the academic year in question). With respect to ensuring reimbursement for and/or payment of private school fees, any shortfall between fees and expenses covered by the U.N. and the total invoice rendered by Armbrae Academy shall be paid by the Father. The requirement for the Father to pay the girl’s Armbrae Academy fees and expenses is conditional upon the Mother and the administration of Armbrae Academy complying with the U.N. policy with respect to ensuring reimbursement for and/or payment of private school expenses incurred for the benefit of the children of U.N. employees. Any reimbursement due from the Father’s employment as result of the payment of private school fees shall be retained by the Father. [80] The parties have disputed the cost of extra-curricular expenses, cost and need for tutoring, and other issues related to Sarah. Ms. Luke’s willingness to involve these children in the minutia of the economic issues between their parents in captured in an e-mail Sarah sent her father from Halifax to Geneva one morning looking for him to replace contact lens she needed for that afternoon’s basketball practice in Halifax. Sarah’s rationale (which conclude was largely influenced by her mother) was that as he bought her contacts for her birthday he should continue to do so. [81] The evidence provided by Ms. Luke with respect to tutoring was scant and suggested that April’s academic issues with French were effort, not ability related. [82] The situation requires stable fixed arrangement with respect to private school, extra-curricular activities, school trips, tutoring, etc. Ms. Luke is receiving some $1849.08/month, $22,188.96/year for Sarah’s care. [83] Mr. Luke complains that tutoring and extra-curricular activities are incurred without his agreement. [84] conclude that all financial arrangements with Armbrae Academy concerning Sarah should be Mr. Luke’s responsibility. He should be the decision maker and contact person for the school on financial issues. Should he decline to pay for an activity or expense at Armbrae he will advise Ms. Luke of that and his reason for doing so. Should she then decide to pay for that activity or specific fee she may do so presumably from the child support she receives. Mr. Luke will remain responsible for the registration and other benefit eligible expenses pursuant to clause of the CRJ. He has indicated that he would pay for minimum of one extracurricular activity at time at Armbrae. would note that while the private school attendance is undoubtedly s.7 CSG “extraordinary expense” there has been little to demonstrate that the extracurricular activities themselves are “extraordinary”. Extra expenses for extra-curricular activities, tutoring, etc., at Armbrae Academy will require his approval and payment by him. Ms. Luke will be financially responsible for any extra-curricular activities or tutoring outside Armbrae Academy. LIFE INSURANCE [85] The CRJ provides at clause 10: 10. Each party shall maintain their current life insurance coverage with the other party as the named beneficiary. For the Wife’s insurance the Husband is to be the beneficiary of 100% of the insurance proceeds until the last child reaches age 25. With respect to the Husband’s insurance, the Husband is to make the Wife the beneficiary of $400,000.00, which is approximately twice his salary. This face amount of insurance may be decreased by $100,000.00 when spousal support is no longer payable and by further $100,000.00 as each child reaches the age of 25 years. The Wife’s policy premiums shall be paid out of the current cash surrender value of her policy (approximately $900.00) until the cash surrender value is exhausted or until she is working and thereafter the premiums shall be paid by the wife). [86] There is no change in circumstance that was not contemplated by the CRJ. Spousal support is not payable. The face amount of insurance now required is $300,000.00. [87] Clause 11 of the CRJ provides: 11. The Husband shall maintain his current medical insurance plan available to him through his employment for the benefit of the children of the marriage. Upon production by the Wife of receipts for medical expenses incurred on behalf of the children, the Husband shall promptly request reimbursement from his employer for the expenses incurred and remit the expense reimbursement provided by his employer directly to the Wife forthwith upon the Husband’s receipt of funds from his employer. The Husband shall pay the difference between the actual cost of medical expenses incurred and the portion of medical expenses which are covered by the Husband’s medical insurance plan until such time as the Wife is employed. Once the Wife is employed, then the parties shall share the additional cost of medical expenses on pro-rate basis. The Court recommends that the children be provided with counselling, up to the maximum cost for counselling available pursuant to the terms of the Husband’s insurance plan. The uninsured portion of counselling expenses are to be paid by the Husband. [88] There have been disputes between the parties. Mr. Luke needs original receipts to make medical claims. would amend this clause to provide that he has no responsibility to pay or contribute to medical expenses unless he receives original receipt/expense documentation from Ms. Luke. [89] The provisions of the Divorce Act, 1985 provide, with respect to variation of custody/access orders: s. 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (b) custody order or any other provision thereof on application by either or both former spouses or by any other person. (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (5) Before the court makes variation order in respect of custody order, the court shall satisfy itself that there has been change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. (6) In making variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. (9) In making variation order varying custody order, the court shall give effect to the principle that child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact. [90] The CRJ provides, with respect to custody and access: 1. The mother shall have custody of the following children of the marriage: William Luke, born February 8, 1984 April Luke, born April 5, 1988 Sarah Luke, born September 24, 1993 2. The children shall reside primarily with the Mother and, in the case of William, because he returns to Halifax as his home for the summer and other school vacations, he is deemed to be residing primarily with the Mother, notwithstanding that he is attending university in Montreal 3. The Father can have access with the children, on 24 hours’ notice to the Mother, when he is in Halifax. The Father shall have the following additional access on the terms as set out herein; (a) Unlimited telephone access; (b) One month each summer, the specific time to be agreed between the parties but, failing agreement, the Father’s one month access shall be for the month of July in 2004 and alternating between July and August each year thereafter; (c) One week during the Christmas school break in 2004, beginning on the day after school finishes for the Christmas break, and in even-numbered years thereafter; (d) One week during March school break, beginning in 2006 on the Saturday at the beginning of the March school break, and in even numbered years thereafter; (e) The Father shall be responsible for the cost of airline tickets for the children to travel to the access location as unaccompanied minors. This provision shall be in place until the youngest child is 14 years old if she is travelling with sibling or other responsible adult and 18 years old if she is travelling alone; (f) The Father shall provide to the Mother copy of the return ticket prior to the children travelling for access; (g) The access may take place at any location where the Father is posted or in an alternate location for family vacation; (h) The Father may request and obtain information regarding the health, education and general well-being of the children, including but not limited to, access to school and medical records and the right to obtain copies of all medical, educational and religious records pertaining to the children directly from third parties; (i) The parents shall make reasonable efforts to share any information regarding the children including information as to health, education, recreational activities and the like; (j) Each parent has the right to authorize emergency medical care and treatment for the children provided, however, that the authorizing parent shall advise the other parent of the treatment required by the child as soon as practicable. [91] Since the granting of the CRJ, William has lived away from home while attending university. He is now 23. April attended university in Ottawa during the last school year. She is now 19 and over the age of majority. They are adults (for the purpose of custody/access order). The CRJ should be amended to delete reference to their being in the custody of either parent. The order will provide that they are in the joint care of their parents. While they will both receive child support conclude from their respective affidavits that it is not in either of their best interests that the Court attempt to structure or manage their relationship with either parent beyond the support orders that have been made. They are adult age. They both filed affidavits in this proceeding. They can be responsible for the management of their relationships with their parents without interference from the Court. The order of custody/access will not refer to either beyond indicating they are in the joint care of their parents. [92] Ms. Luke has at times been difficult and unreasonable when efforts have been made for the children to travel to visit Mr. Luke. [93] Sarah attends private school in Halifax, Armbrae Academy. Their website indicates that their school breaks for the coming year are as follows: December 18, 2007 January 7, 2008 March 7, 2008 March 25, 2008 June 20, 2008 end of August 2008. [94] have considered the provisions of the Divorce Act and the evidence before me, including evidence indicating that there is degree of discomfort between William, April and Sarah and Mr. Luke’s second wife and her children. Ms. Luke asks that Mr. Luke’s access be restricted that it either not be at his home in Geneva or that Mr. Luke’s second wife not be present. am not satisfied that the discomfort described warrants such restriction. Adjustments between first and second families sometimes take time. Mr. Luke should be well aware that were he to tolerate overt acts that made Sarah (or for that matter William or April) unwelcome in his home he would be jeopardizing or potentially impacting on his relationship with his child(ren). All of this said, the evidence indicates that Ms. Luke has all but overtly encouraged the feelings of apprehension and discomfort the children have. Describing some of her e-mail communications about Mr. Luke and his current wife as inappropriate risks understatement. [95] Mr. Luke will have the right have block access with Sarah this coming year: (a) December 27 or 28 to January or 6. The choice of dates will be Mr. Luke’s to give him some flexibility with air fares. He shall advise Ms. Luke of the dates, flights., etc. by September 30, 2007. If he does so it will be Ms. Luke’s responsibility to get Sarah to the airport with the appropriate documentation. (b) 10 days between March and March 24, 2008. The dates are to be chosen by Mr. Luke by December 31, 2007. Again it will be Ms. Luke’s responsibility to get Sarah to the airport with the appropriate documentation. (c) 30 days between June 20, 2008 and August 31, 2008. Again Mr. Luke to pick the dates. He is to advise Ms. Luke by March 31, 2008 of the dates he chooses. Again Ms. Luke will be responsible for Sarah’s transport to the airport. [96] Mr. Luke requested that the requirement that Sarah travel as an unaccompanied minor be removed. It will remain in place (if it is available on the route being travelled) until her 16th birthday if she is travelling alone. If it is not available on the route being travelled, the travel may still occur. [97] Mr. Luke’s block access in future years will be similarly scheduled. see no reason to limit Mr. Luke’s access to either the Christmas break or the March Break. If he has the resources to have Sarah visit with him, then he, and she, should have the opportunity to do so. [98] These provisions will replace clauses 3(b), (c), (d) and the portion of (e) that relates to unaccompanied air travel. OTHER ISSUES [99] Mr. Luke’s counsel’s request for relief included the following: inclusion of prohibition on the mother interfering with the father’s access with the children by encouraging the children to reject the father’s access plans, making plans that overlap with the father’s access plans; inclusion of limit to two calls per week by the mother to the children during their access with the father; inclusion of prohibition on the mother sending emails to the children which criticise the father, his wife, his wife’s children or extended family, as well as prohibition of the mother sending emails to third parties which are derogatory to the father or his family; an order allowing the father to deduct from the child support payable to the mother for the month of June 2007, for the following: (a) parking tickets in the total amount of $415.00; (b) penalty due to Armbrae as result of April’s failure to return book during her final year of school at Armbrae Academy in the amount of $125.00. an order providing that the cost of replacing lost or damaged property is the responsibility of the parent the child is staying with when the incident occurred. [100] The evidence suggests that Ms. Luke has at times been unreasonable in her attempts to interfere with Mr. Luke’s relationships with the children. Interference with access through the making of alternate plans or by encouraging rejection of such plans are not the actions of responsible parent. If flight arrangements are made, and Sarah does not fly (and there is no medical reason confirmed in writing by a doctor for that failure) then:a. Mr. Luke’s block access shall expand one week at the next access period andb. the cost of any penalty from the cancelled or missed flight will be deducted dollar for dollar from the child support payable by Mr. Luke for Sarah - with this clawback spread over two months. This portion of the order is reviewable on application to the Court. make the order concluding that if Ms. Luke fails in her responsibility as custodial parent to have Sarah exercise the access Ms. Luke will be choosing to have part of the child support that is payable diverted to pay such penalty. [101] During Mr. Luke’s access periods Ms. Luke may call Sarah once each days. [102] Prohibitions in circumstances such as these are of limited utility if they cannot be enforced. Many of the e-mails she has sent are inappropriate. Some are overtly manipulative. The discomfort this causes the children is seen in April’s desire to not become involved, to be neutral. The court does not have the means or ability to control Ms. Luke’s e-mails whether to the children or others. [103] Four hundred fifteen dollars worth of parking tickets were placed on the family vehicle post-divorce. The car was registered in Mr. Luke’s name at the time. He was living overseas. This Court has no jurisdiction over parking tickets, no way of telling who got them (Ms. Luke, William or April) and no remedy available. His car. His tickets. [104] April was fined $125.00 for failing to return book during her last year at Armbrae Academy. assume that Mr. Luke has paid this. would make no adjustment to the order arising from this. [105] The matter should not be prolonged by arguments on costs. [106] am constrained in dealing with costs by Ms. Luke’s lack of income. In other circumstances would order significant costs against her. She has had little success in this proceeding. In the circumstances conclude that an award of costs in the amount of $2000.00 is appropriate. The amount will be payable by Ms. Luke to Mr. Luke on or before January 1, 2008. (Her evidence is that she anticipates having job that will pay her $70,000.00 per year in the Fall of 2007). Mr. Luke’s counsel will prepare the order. J. APPENDIX “I” The Corollary Relief Judgment of May 27, 2004 included the following provisions: 2. The children shall reside primarily with the Mother and, in the case of William, because he returns to Halifax as his home for the summer and other school vacations, he is deemed to be residing primarily with the Mother, notwithstanding that he is attending university in Montreal. 3. The Father can have access with the children, on 24 hours’ notice to the Mother, when he is in Halifax. The Father shall have the following additional access on the terms as set out herein; (a) Unlimited telephone access; (b) One month each summer, the specific time to be agreed between the parties but, failing agreement, the Father’s one month access shall be for the month of July in 2004 and alternating between July and August each year thereafter; (c) One week during the Christmas school break in 2004, beginning on the day after school finishes for the Christmas break and in even-numbered years thereafter; (d) One week during March school break, beginning in 2006 on the Saturday at the beginning of the March school break, and in even numbered years thereafter; (e) The Father shall be responsible for the cost of airline tickets for the children to travel to the access location as unaccompanied minors. This provision shall be in place until the youngest child is 14 years old if she is travelling with sibling or other responsible adult and 18 years old if she is travelling alone; (f) The Father shall provide to the Mother copy of the return ticket prior to the children travelling for access; (g) The access may take place at any location where the Father is posted or in an alternate location for family vacation; (h) The Father may request and obtain information regarding the health, education and general well-being of the children, including but not limited to, access to school and medical records and the right to obtain copies of all medical, educational and religious records pertaining to the children directly from third parties. (i) The parents shall make reasonable efforts to share any information regarding the children including information as to health, education, recreational activities and the like; (j) Each parent has the right to authorize emergency medical care and treatment for the children provided, however, that the authorizing parent shall advise the other parent of the treatment required by the child as soon as practicable. 4. For the purpose of fixing child support, the Father’s income is found to be $12,759.73 US per month which is an annual income of $153,116.76 US or $203,706.00 Can. (On current conversion rate of 1.3304) based on the financial information before the court at the time of the binding settlement conference in December, 2003. The Father’s income shall not be grossed up pursuant to the Child Support Guidelines s. 19 because there is regular deduction made from the Father’s income by his employer which is akin to an income tax deduction that would be made if the Father were resident and working in Canada. 5. The Father shall pay base guideline child support to the Mother for the three children in the amount of $3,088.20 per month retroactive to December 20, 2003 (pro-rated for December) and payable on the first day of each month until the children are no longer children of the marriage as defined by the Divorce Act. The quantum of child support shall be adjusted annually based on the Father’s annual income for the previous calendar year. On or before January 15th of each year each party shall provide to the other proof of his or her annual income for the previous calendar year. 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. 7. Armbrae Academy has invoiced the Luke family for the full year of private school fees and expenses for the 2003-2004 academic years. Attached is copy of said invoice. Armbrae Academy’s invoice for 2003-2004 shall be paid 70% by the Father and 30% by the Mother (with the exception of tutoring expenses of $4,000.00 for each child for which he is 100% responsible for). The Father shall be responsible for 100% of the school fees and expenses incurred in South Africa. Armbrae Academy’s fees and expenses shall be paid as they were prior to separation, paid directly to Armbrae Academy’s bank account (particulars attached), according to the U.N. policy of payment for private school fees (i.e. portion of fees for an academic year are paid in advance and the balance of these are paid upon confirmation that the children have been in attendance at the educational institution for the academic year in question). With respect to ensuring reimbursement for and/or payment of private school fees, any shortfall between fees and expenses covered by the U.N. and the total invoice rendered by Armbrae Academy shall be paid by the Father. The requirement for the Father to pay the girl’s Armbrae Academy fees and expenses is conditional upon the Mother and the administration of Armbrae Academy complying with the U.N. policy with respect to ensuring reimbursement for and/or payment of private school expenses incurred for the benefit of the children of U.N. employees. Any reimbursement due from the Father’s employment as result of the payment of private school fees shall be retained by the Father. 8. The Husband shall pay spousal support to the Wife in the amount of $3,100.00 per month beginning on April 1, 2004 and continuing on or before the 1st of each month until the earlier of: (a) Twelve months after the Wife graduates from the MBA program in which she is current enrolled (graduation no later than May, 2005); or (b) Six months after the Wife withdraws from the MBA program in which she is currently enrolled; or (c) The Wife obtains employment. Therefore, on or before June 1, 2006, the Husband’s obligation to provide spousal support to the Wife shall terminate absolutely. 9. Pending the sale of the matrimonial home, the Husband shall pay portion of the spousal support provided for in this Order by way of the following monthly third party payments: (a) Mortgage and taxes $919.00; (b) Condo fees and reserve fund $245.00; (c) House insurance $23.33. 12. The matrimonial home located at 79 Attenborough Court, Halifax, Nova Scotia, shall be sold as soon as practicable and the proceeds of sale, after payment of closing costs, shall be divided equally. The Supreme Court (Family Division) retains jurisdiction with respect to the administration of the sale of the matrimonial home should the parties be unable to resolve dispute regarding matters such as, but not limited to, the listing price, the sale price, and appropriate deductions from the proceeds of sale. 13. Out of the Husband’s share of the proceeds of the sale of the home, the Wife shall receive $10,000.00 lump sum spousal support as the Husband’s contribution to the Wife’s past and future education costs. 16. The Husband shall pay to the Wife forthwith the sum of $2,411.63 calculated as follows: $2,525.49 (arrears of car insurance) less $2,100.00 (condo fees paid) Totalling net arrears of $425.49 Plus $2,700.00 (one-half of the US dollar G.I.C.) less $713.86 (balance of mutual funds) Equalling $2,411.63 17. The Husband owes the Wife for retroactive child support the total sum of $13,448.65 calculated as follows: $1,095.81 (11 days in December) $3,088.20 (January) $3,088.20 (February) $3,088.20 (March) $3,088.20 (April) Total $13,448.65 23. The Husband’s employment pension with the U.N. accumulated from the date of marriage to the date of separation (September 4, 1982 to and including October 21, 2002) shall be divided equally between the parties at source. Either party shall be at liberty to apply to Court of competent jurisdiction for an Order for further direction should difficulties occur with respect to the interpretation or implementation of the pension division set out in this paragraph. Shortly after the Corollary Relief Judgment issued Consent Variation Order dated September 23, 2004, was agreed to. It provided: 1. The Corollary Relief Judgement dated May 27, 2004, paragraphs 9, 12, 13, 16, 17 and 23 are hereby rescinded and replaced with the following: 12. The Husband shall convey by quit claim deed all of his interest in the Matrimonial Home located at 79 Attenborough Court, Halifax, Nova Scotia. 13. In partial exchange for the conveyance provided for in paragraph 12 above, the Wife shall immediately have the Husband removed from the covenants on the mortgage and shall indemnify the Husband from any liability, past, present or future, with respect to the mortgage, condo fees and household accounts. 16. The Husband’s obligations pursuant to the Corollary Relief Judgement paragraphs 13, 15, 16, 17 and 23, and the Wife’s obligations pursuant to the Corollary Relief Judgement paragraph 14, shall be deemed satisfied by the Husband’s conveyance of title to the matrimonial home to the Wife and the Wife’s assumption of the mortgage, condo fees and other household accounts. Neither party shall apply for division of the Husband’s employment pension with the U.N. pursuant to paragraph 23 of the Corollary Relief Judgement dated May 27, 2004. On October 16, 2006, an Emergency Variation Order was granted by Justice Gass of this Court. It provided: 1. David Luke shall pay base guideline child support for the three children of the marriage, based on his current income, in the amount of $3,550.00 beginning on October 1, 2006 and continuing on the 1st of November and the 1st of December, 2006. Child support shall be adjusted according to the formula set out in the Corollary Relief Judgment as of January, 2007. 2. Paragraph of the Corollary Relief Judgment shall also apply to April Luke “in the same manner as it was for William”. 3. decision with respect to William Luke’s status as “child of the marriage” is deferred. Pending decision on that issue, David Luke shall pay to William Luke, as contribution to his post-secondary education 50% of the 1/3 of the table amount of child support payable pursuant to this Order. At the current child support level, this requires payment directly to William Luke in the amount of $592.00 per month and reduces the child support guidelines table amount payable directly to Rosamond Luke to $2,958.00 per month. The appropriate adjustment to the payment to both William Luke and Rosamond Luke shall be made according to the terms of the Corollary Relief Judgment for January, 2007. 4. This Order is subject to further order of this Honourable Court or Court of competent jurisdiction.
The parties, divorced, had children, aged 23, 19, and 14 years, respectively. The wife applied to vary the Corollary Relief Judgment (CRJ) following the termination of spousal support. The termination had occurred pursuant to the terms of the CRJ which provided that support would terminate either twelve months after her graduation from the M.B.A. program in which she was enrolled, six months after she withdrew from the program, or when she found employment. The wife had graduated from the program later than expected and a further six months after her course work was completed. Both parties applied to vary child support. The oldest child had completed his first university degree and was currently attending law school. Pursuant to the father's employment, until the completion of their first degree, the children qualified for a program which reimbursed the father for 75 per cent of the child's educational expenses. The CRJ had provided that the father's responsibility to pay all of the oldest child's educational expenses was conditional upon compliance and eligibility for the education reimbursement policies. The middle child was attending university and lived in the wife's home over the summer months. Spousal support application denied; given the family history of an emphasis on education and the oldest child's career plans and apparent aptitudes, he remained a child of the marriage; the father is to pay $10,000 per year directly to the oldest child for the next two years. The father will pay 25 per cent of the core university costs which are not covered by the plan for the middle child as well as the difference in the Table amount of support for two children versus one child; the father shall pay the Table amount of support for one child to the wife for the youngest child as well as that child's expenses for private school; the wife will be responsible for any extra-curricular activities or tutoring outside the private school; the youngest child will be entitled to the same post-secondary benefits in the same fashion as the two older children; the CRJ is amended to provide that the two oldest children are in the joint care of their parents and will not include any other reference to custody or access; the husband is entitled to specified block access with the youngest child; if flight arrangements are made for this child and she does not fly (and there is no medical reason confirmed in writing by a doctor for that failure), the husband's block access shall be expanded for one week at the next access period and the cost of any penalty from the missed flight will be deducted dollar for dollar from the child support payable by the husband.