QUEEN’S BENCH FOR SASKATCHEWAN 2008 SKQB 146 Date: 2008 04 02 Docket: DIV. No. 000454 of 1998 Judicial Centre: Humboldt BETWEEN: SHARON STRUEBY and KIRK STRUEBY Counsel: Richard W. Danyliuk, Q.C. for the petitioner David J. Flett for the respondent FIAT GABRIELSON J. April 2, 2008 INTRODUCTION [1] On September 19, 2007, the respondent Kirk Strueby (“Mr. Strueby”) filed an application for an order varying child support order granted by Justice Y. Wilkinson on May 10, 1999 (which order was subsequently confirmed by the judgment of Justice Dielschneider dated February 28, 2000, which therefore becomes the order sought to be varied). The relief sought was as follows: (a) declaration that Jill Strueby, born December 16, 1981 and Luke Strueby born May 29, 1986, are no longer children of the marriage within the meaning of the Divorce Act; (b) As result of the two said children no longer being children of the marriage within the meaning of the Divorce Act, that no further child support is owing by the applicant for these children as of January 1, 2007; (c) An Order eliminating the Applicant’s child support arrears as at the time of the application in the amount of $17,400.00, for the period of March 2003 to September 2007; (d) An Order that the Respondent’s obligation to pay proportional amount of post secondary school expenses for the child of the marriage, Keegan Strueby, born November 13, 1989, be fixed based upon the applicant’s income of $44,781.00 and the Petitioner’s income; and (e) An Order that any maintenance for Keegan Strueby be paid directly to Keegan. [2] The parties were married November 1, 1980. They separated on or about April 11, 1994. Three children were born of the marriage: Jill Strueby (“Jill”), born December 16, 1981, Luke Strueby (“Luke”), born May 29, 1986, and Keegan Strueby (“Keegan”), born November 13, 1989. The petitioner, Sharon Strueby (“Ms. Strueby”), filed petition for divorce on November 24, 1998, in which she sought custody of the children and child support in accordance with the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175]. Pursuant to consent judgment dated February 28, 2000, in which Ms. Strueby was granted custody of the children, Mr. Strueby, was found to have gross annual income of $26,400, and based upon this income was ordered to pay to Ms. Strueby the sum of $500 per month for child support as well as an additional sum of $100 per month for child care expenses and extracurricular activity expenses. There was also to be set-off of $100 per month in respect to the sum payable for the extracurricular activities until such time as the sum of $5,000 payable by Ms. Strueby to Mr. Strueby in respect to the transfer of the matrimonial home from Mr. Strueby to Ms. Strueby had been achieved. [3] On or about August 1, 2007, Ms. Strueby registered the judgment with maintenance enforcement. The affidavit filed by Ms. Strueby at that time indicated that arrears in the amount of $17,400 were owing as of August 20, 2007 in respect to the maintenance order of February 28, 2000. [4] In the affidavit filed by Mr. Strueby at the time of this application, he stated that all three children had attended university once they had reached the age of majority. He indicated that while he had initially continued to pay the child support provided for in the judgment, he had reduced the amount of child support gradually as they became independent and moved out on their own, although even then he continued to support them financially. [5] In her reply affidavit, Ms. Strueby took issue with the details provided in Mr. Strueby’s affidavit concerning the child support he had paid and his assertion that his support obligations were reduced simply because the children had reached the age of majority. In her affidavit, Ms. Strueby outlined the children’s educational performance and submitted that they remained children within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), so long as they were attending university in some fashion. Ms. Strueby also indicated that she had not agreed to Mr. Strueby’s unilateral reduction of the child support payments and therefore opposed any variation of the arrears. [6] In this case, the parties agree that given the age of the children, and the change in the amount of Mr. Strueby’s income, that there has been a change in circumstances sufficient to allow a review of the existing child support order. [7] Justice Dielschneider’s consent judgment of February 28, 2000 provided that child support payments would continue “until such time as the children are no longer children within the meaning of the Divorce Act”. Section of the Divorce Act defines the term child and provides as follows: 2.(1) In this Act, “child of the marriage” means child of two spouses or former spouses who, at the material time, (a) is under the age of majority and has not withdrawn from their charge, or (b) 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. [8] In the case of Bowman v. Bowman, 2005 SKQB (CanLII), 260 Sask. R. 312, Justice Ryan-Froslie reviewed the law concerning the payment of child support in respect to child over the age of majority but attending university. She stated at para. [9] It is well-settled that full time attendance in post-secondary education program may result in child over the age of majority qualifying as “child” within the meaning of the Divorce Act. See: Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295; 107 W.A.C. 295 (C.A.). Neither the case law nor the Divorce Act specifies an academic achievement level where support automatically terminates. Each case must be considered on its own facts. The guiding principle is reasonableness. See: Ivany v. Ivany (1996), 1996 CanLII 6619 (NL SC), 145 Nfld. P.E.I.R. 106; 453 A.P.R. 106; 24 R.F.L. (4th) 289 (N.F.S.C.). [10] Generally, parents will remain financially responsible for bona fide adult student until the child has obtained degree or certificate that equips him or her for entry level employment in an appropriate field within reasonable period of time. The length of time, level of education or number of degrees required to be supported by the parent will vary depending on the circumstances of each case. See: Jamieson v. Jamieson (1995), 1995 CanLII 6227 (NB CA), 163 N.B.R. (2d) 178; 419 A.P.R. 178; 14 R.F.L. (4th) 354 (N.B.C.A.); Smith (J.) v. Smith (J.C.) (1990), 1990 CanLII 8083 (MB CA), 66 Man. R. (2d) 181; 71 D.L.R. (4th) 612; 27 R.F.L. (3d) 32 (C.A.); Martell v. Height (1994), 1994 CanLII 4145 (NS CA), 130 N.S.R. (2d) 318; 367 A.P.R. 318; R.F.L. (4th) 104 (C.A.); and McGregor v. McGregor (1994), 1994 CanLII 5242 (NB CA), 148 N.B.R. (2d) 176; 378 A.P.R. 176; R.F.L. (4th) 343 (C.A.). The Saskatchewan Court of Appeal in Zaba, supra, set out number of factors court should consider in determining whether child attending post-secondary education remains child within the meaning of the Divorce Act. Those factors include: (i) Whether the child is eligible for student loans or other financial assistance; (ii) Whether the child’s career plans are reasonable; (iii) The ability of the child to contribute to his or her own support; (iv) The parental plans for the child’s education, particularly those made during cohabitation; (v) Whether the child unilaterally terminated the relationship with the payor; and (vi) Whether the child might reasonably have expected assistance if the marriage had not broken down. Other factors courts have considered are the age of the children involved, the child’s ability to secure employment at the end of any course of study, whether the child is “expeditiously” pursuing their educational goals, whether the child”s academic pursuits are commensurate with their ability and whether the child is full or part time student. Justice Zuker of the Ontario Court of Justice provided comprehensive review of the law in Kusnir v. Kusnir (2001), 2001 CanLII 26415 (ON CJ), 21 R.F.L. (5th) 90 (Ont. C.J.). [9] Section 3(2) of the Guidelines addresses the amount payable in respect to child support assuming that the child is of the age of majority or older. It provides as follows: 3(2) Unless otherwise provided under these Guidelines, where child to whom child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [10] The Guidelines also deal with expenses for secondary education and confirm that such expenses may be part of the child support order. Section of the Guidelines provides as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation; (e) expenses for post-secondary education. [11] In the case of Rebenchuk v. Rebenchuk, 2007 MBCA 22 (CanLII), 279 D.L.R. (4th) 448, the Manitoba Court of Appeal suggested three-step process in dealing with support orders for children who have reached the age of majority. The court stated at para. [23] It can now be safety stated that the following three steps need to be addressed in circumstances such as those before us: Step 1: Is the person for whom support is sought “child the marriage”? Step 2: Is the table amount in the Guidelines “inappropriate”? If not, then the Guidelines amount should be awarded. Step 3: If the answer to Step is “yes”, what level of support is “appropriate”? [12] parent seeking to uphold support order once the child has reached the age of majority has the onus of proving that the child remains child of the marriage within the meaning of s. 2(1) of the Act and also as to the appropriate amount of support even if the child remains child of the marriage See Duncan v. Duncan (1989), 1989 CanLII 4502 (SK QB), 74 Sask. R. 100, 18 R.F.L. (3d) 46 (Q.B.); Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.); and Harder v. Harder, 2003 SKQB 286 (CanLII), 41 R.F.L. (5th) 69. ANALYSIS Step Do the children remain children of the marriage within the meaning of the Divorce Act? [13] Although initially the parties were at odds concerning all three children, by the time of their latest submissions, some consensus had been reached regarding two of the children. The parties are in agreement that Jill, now 26 years of age and on her own, is no longer a child of the marriage within the meaning of the Divorce Act. The parties also agree that Luke, now 21, is not at the present time a child of the marriage, but could once again become a child of the marriage if he attends university beginning in the fall of 2008 as he intends. The parties agree that the application for child support concerning Luke should be adjourned until November 1, 2008, at which time Luke’s situation will be further examined to determine whether he is attending university and has once again become child of the marriage and what level of support, if any, is required for him. The parties are also in agreement that the child, Keegan, now 18, remains a child of the marriage within the meaning of the Divorce Act by virtue of the fact that he was during the months September to December of 2007 registered in and taking classes at Simon Fraser University and for the Spring term of 2008 is registered in and is taking three classes at the University of Saskatchewan. Step What amount of child support is appropriate? [14] In this case, after some discussion and argument, think the parties are also in agreement that the Guideline amounts are appropriate and were appropriate in the past, so long as the children remained children within the meaning of the Act. In any event, based on the circumstances of this case, would have found the Guideline amounts to be appropriate. [15] The real issue between the parties appears to be in respect to the factors to be considered when the children were attending university and working part time and how this would affect the Guideline amounts payable. Fortunately, do not need to determine this issue as the parties have asked me to determine only the obligations up to the initial return date on the application which was December 17, 2007. As of that date, Keegan was in full-time attendance at university and Luke was not, so that the Guideline amounts up to that date were appropriate. Based upon Mr. Strueby’s 2007 income of $44,781 and Ms. Strueby’s income of $90,628, the Guideline amount payable by Mr. Strueby for the support of Keeghan is $380 per month plus 33% of all s. expenses. [16] While Mr. Strueby’s application for variation requested that he be allowed to pay any maintenance payable for Keegan directly to Keegan, there is nothing in the material filed which would indicate that Ms. Strueby is not providing support to Keegan in an appropriate fashion. Furthermore, the difficulties that could then arise in respect to enforcement of the order if the child support payments were not made directly to Ms. Strueby would mitigate against such a variation. See Shillington v. Shillington, 2008 SKQB 70 (CanLII), [2008] S.J. No. 89 (QL). Step The application to eliminate or reduce Mr. Strueby’s child support arrears [17] While Mr. Strueby’s initial application had been to eliminate the child support arrears, it was acknowledged by his counsel in the pre-trial brief filed and in argument that as result of his increases in income since the original support order had been made in 2003, and the fact that Keegan only achieved the age of majority in November of 2007, that any retroactive assessment of arrears should take these factors into account. Mr. Strueby’s counsel filed material indicating that the total arrears as of December 17, 2007 were $9,440. Ms. Strueby’s counsel does not take issue with the mathematical calculations, but suggests that they are based upon assumptions as to dates at which the child support orders for Jill and Luke would cease, which Ms. Strueby does not accept. However, as the onus of proof in this regard is upon the parent seeking to establish an obligation to pay child support after the age of majority, and as Ms. Strueby did not file or submit evidence as to what appropriate costs were, therefore accept the calculations prepared by counsel for Mr. Strueby. [18] However, para. 13 of Ms. Strueby’s affidavit sworn December 11, 2007 indicates that Keegan’s costs for attendance at Simon Fraser University totalled $18,000, of which she paid the sum of $8,000, with the remainder paid by student loans. While the sum paid by Ms. Strueby is not broken down between tuition and living expenses, am satisfied that this cost should be divided between the parties in the same proportion as the s. expenses based upon their respective incomes. Accordingly, Mr. Strueby’s share would be 33% or $2,667. Pursuant to Mr. Strueby’s counsel’s calculations, and my order that he was to have paid $380 per month for the months of September to December, this would total $1,520. After deducting this sum from the $2,667 in total support for this period that he should otherwise have paid, there remains owing the additional sum of $1,147 which should be added on to the outstanding arrears. Therefore, the arrears as of December 17, 2007 are $10,587. [19] Mr. Strueby has also sought an order for an orderly payment of the arrears. Based upon the financial information that he has provided, set the amount that Mr. Strueby should pay towards the arrears at $200 per month until such time as Mr. Strueby is no longer paying child support for Keegan when the amount payable towards the arrears should increase to $500 per month. [20] 1. There shall be a declaration that Jill, born December 16, 1981, is no longer a child of the marriage within the meaning of the Divorce Act. 2. There shall also be a declaration that Luke, born May 29, 1986, is no longer a child of the marriage within the meaning of the Divorce Act, but that this application concerning Luke is adjourned until November 1, 2008 to determine if he has once again become a child of the marriage and if so, if child support is payable by Mr. Strueby in respect to Luke. 3. The child, Keegan, born November 13, 1989, is found to be a child of the marriage within the meaning of the Divorce Act. Based upon Mr. Strueby’s 2006 income of $44,957 and Ms. Strueby’s 2006 income of $90,628, the judgment of Justice P.J. Dielschneider dated February 28, 2000 is varied such that Mr. Strueby shall pay to Ms. Strueby, for support of the said Keegan, the sum of $380 per month plus 33% of s. expenses, with such payments to continue on the first day of each and every month until such time as the said child, Keegan, is no longer child within the meaning of the Divorce Act; 4. It is determined that the amount of child support arrears owing under the judgment of Justice P.J. Dielschneider dated February 28, 2000, as of December 17, 2007, is $10,587. Mr. Strueby shall pay to Ms. Strueby this amount by monthly payments of $200 per month commencing January 1, 2008. 5. As the sum of $500 per month has been paid in the interim pursuant to my order of December 17, 2007, any such payments made shall be applied firstly towards the ongoing child support for Keegan, and then towards the arrears. 6. As success has been divided in respect to this application, there will be no order as to costs. J. N.G. GABRIELSON
FIAT: The parties have three children, Jill born December 1981, Luke born May 1986 and Keegan born November 1989. The respondent states that he has paid child support pursuant to the court order of February 2000 but, when the children reached the age of majority, he reduced the amount of child support payable as the children became independent and moved out on their own. The petitioner takes issue with the respondent's unilateral reduction in child support and submits the children remained children within the meaning of the Divorce Act so long as they were attending university. The parties agree that given the age of the children there has been a change in circumstance sufficient to allow a review of the existing child support order. HELD: 1) The parties agree that Jill, age 26 is no longer a child of the marriage and that Luke, age 21 is not presently a child of the marriage but could once again become a child of the marriage if he attends university in the fall of 2008. The parties also agree Keegan is 18 and remains a child of the marriage by virtue of the fact that he is taking classes at the university. 2) While the respondent asks that he be allowed to pay child support directly to the children, there is nothing in the material filed which would indicate that the petitioner is not providing support to the child in an appropriate fashion. Further, the difficulties that would arise in respect to enforcement of the order if the child support payments were not made directly to the petitioner would mitigate against such a variation.