J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 450 Date: 20051024 Docket: F.L.D. No. 221/1998 Judicial Centre: Regina, Family Law Division BETWEEN: BETTY EILEEN DONALD and GEORGE EDWIN BROWN Counsel: Michael B. Ryan, Q.C. for the Betty Eileen Donald M. Dean Brown for the George Edwin Brown JUDGMENT GUNN J. October 24, 2005 [1] There are two applications before the Court. Betty Donald seeks an order varying the support order granted by Archambault, J. on September 11, 1998. She seeks the following: (a) An order increasing the current $200.00 per month payment on behalf of the child, Warren Brown (born February 26, 1986), retroactive to October 1, 2003; (b) An order for lump sum payment for past s. post-secondary expenses incurred on behalf of the child for 2002-2003; and 2003-2004 school years; (c) An order for monthly payment toward ongoing s. expenses; (d) An order exempting the parties from attending the Parent Education Program; (e) Costs of the application. [2] At the commencement of the hearing Ms. Donald abandoned any claims for retroactive support and retroactive s. expenses. She now seeks an order for ongoing child maintenance, based on the Federal Child Support Guidelines (SOR/97‑175, as am.) (the “Guidelines”) commencing September 1, 2005 payable to and including March 1, 2006. She seeks review in August of 2006 for further determination of whether Warren remains person within the meaning of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 (the “Act”). She accepts Mr. Brown’s income to be $21, 953.52 as set out in his financial statement and on that basis claims monthly support for Warren in the sum of $181.00 per month. She further seeks an order pursuant to s. of the Guidelines for some contribution to Warren’s post-secondary expenses commencing September 1, 2005. [3] Mr. Brown seeks an order that his child support obligations for Warren cease effective July 2004, and that he be reimbursed for any payments made subsequent to that date. Mr. Brown takes the position that in July of 2004 and thereafter, Warren ceased to be a person within the meaning of the Act as he was not, by reason of the pursuit of reasonable education, unable to withdraw from Ms. Donald’s charge or to obtain the necessaries of life. In the event any ongoing payments are ordered, Mr. Brown submits his income should be found to be $16,049.73 as that is his most recent income. [4] Betty Donald and George Brown cohabited as spouses from 1980 to February 1997. They have two children, one of whom is Warren George Brown, born February 26, 1986. Pursuant to the order of Archambault, J., Mr. Brown is required to pay $200.00 per month maintenance for Warren. His payments are current to August 2005. [5] Since her separation from Mr. Brown, Ms. Donald has lost her sight. This occurred in 2001. She currently receives Canada Pension disability benefits of $859.00 per month (affidavit April 25, 2005 paragraph 5) net of tax or $947.03 gross per month (affidavit September 9, 2005 paragraph 9). This is her only current source of income. On an annual basis this is $11,364.36 gross. In 2004 she received, in addition, the sum of $3,394.38 from the Regina Qu’Appelle Health District, her former employer, on account of 2001 holiday pay owing to her. [6] Mr. Brown continues to be employed as long-haul truck driver working for Corcoran Trucking, the head office of which is in Billings, Montana. He has held this type of employment for the past 30 years, although not always with the same employer. He lives in Regina with his former wife, Rita Brown, with whom he has reconciled. They have lived together in Regina since August 1, 2004. The income reported in the past three years on his income tax return is the following: [7] In his financial statement, he states his annual income is $21,953.52. This is the average of the past three years. Warren Brown [8] Warren is now 19 years of age. He completed Grade 12 in June of 2004, however he returned to Thom Collegiate in the fall of 2004 to complete three further classes. letter dated September 7, 2005 was filed from the principal of Thom Collegiate confirming that Warren was student at Thom from August 27, 2004 until October 20, 2004. [9] October 15, 2004 he was accepted at SIAST in Pre-Trades Carpentry program commencing November 1, 2004 and ending April 1, 2005. His tuition was $1,810.00, plus books and other materials of $600.00. Warren achieved an overall weighted average of 69% at SIAST. [10] February 3, 2005 Warren was accepted at New Media Campus taking an on-line Multimedia Professional Studies/Film Animation course through New Media Campus. He was, at this time, still finishing his classes at SIAST. The description of this course was provided in letter dated August 10, 2005 by Jon Ketch, the Office Manager of New Media to Ms. Donald’s counsel. Portions of the letter read as follows: ... Warren is currently enrolled at New Media Campus and taking the Online Multimedia Professional Studies program. The Online Multimedia program is full-time program in which the student is allowed 52 weeks to complete the program. The Online Multimedia program is exactly the same content-wise as the In-class Multimedia program, which runs for 10 months, Sept-May, Mon-Fri, 9-5; the only difference being the flexibility of studying from home on your own schedule. As declared by Saskatchewan Learning, students must be enrolled in 60% or more of full course load for the school term in order to be deemed full-time student. Warren is enrolled in 100% of full course load for the school term and is therefore full-time student. The number of hours the student puts in to the program is entirely up to the individual, as long as all assignments are completed and handed in before the given end date.... [T]he course actually begins on the exact day the student receives his computer. In Warren’s case, this was March 14, 2005, making his end date March 13, 2006.... [11] Warren’s current average on his assignments at New Media is 83%. He hopes to continue with his studies in September of 2006 taking 3D Animation Game Design which is an in-class program, starting in September and running for 10 months, Monday to Friday 9:00 a.m. to 5:00 p.m. [12] The tuition at New Media is $12,000.00 per annum plus registration fee of $75.00. This tuition is to be paid by deposit of $6,270.00 followed by monthly payments of $716.00. Warren’s employment history and income is the following: [13] Warren deposes that he worked for some time at McDonald’s earning $7.55 per hour. His income in 2003 was $6,348.00 and in 2004 it was $10,175.32. Warren also began to receive CPP child benefits of $195.96 per month in March of 2004. The total income reported in his 2004 tax return was $12,167.00. [14] Warren’s income from McDonald’s in 2005 is $3,368.91. He changed jobs in April 2005. Warren is currently working approximately 20 hours per week at WalMart earning $8.10 per hour. His take home pay is about $200.00 to $250.00 every two weeks. He has reduced his hours of work because he needs to concentrate on his school work. [15] Warren has been approved for Canada and Saskatchewan Student Loan. The details of the payments approved to date are the following: (a) Canada Student Loan disbursement of $6,270.00 on February 8, 2005; (b) Saskatchewan Student Loan payments of $380.00 paid and/or authorized for March 1, 2005 to and including January 1, 2006. Warren’s Expenses [16] In May of 2004, Warren applied for and received $2,600.00 loan from TD Canada Trust which was used to pay outstanding fees owed to Thom Collegiate. In November of 2004, he applied for $2,500.00 student line of credit to pay for his expenses while he was attending SIAST. Subsequently these two loans were consolidated, and Warren is making payments on these loans. As at April 26, 2005, Warren deposes that the balance owing was approximately $3,600.00. [17] Warren deposes that his monthly expenses are the following: TD Canada Trust Payment $100.00 Gas, licence and insurance $155.00 School supplies(This is for CD’s to upload school work to New Media 50.00 Entertainment and Recreation $180.00 Monthly tuition to New Media $716.00 Hair care, toiletries and clothing $100.00 Parental Support [18] Warren lives with Ms. Donald who provides him with room and board. She also pays for the high speed internet at cost of $49.95 per month as it is required for his on-line course. [19] Prior to March of 2005, Warren had not spoken to his father in couple of years. He did see his father along with Rita Brown in March of 2005, but has not seen him since. Mr. Brown deposes that the March meeting went very well, but that they have not heard from Warren since that time. 1. Was Warren person within the meaning of s. 4(2) of The Family Maintenance Act, 1997 after July 2004? 2. What is Mr. Brown’s income? 3. On what basis should Mr. Brown’s obligation be determined? 4. Conclusions. LEGISLATION [20] The pertinent sections of The Family Maintenance Act, 1997 and regulations are as follows: 3(1) Every parent has an obligation to provide maintenance for his or her child to the extent that the parent is capable of so doing. (2) Subject to subsections (4) and (5), the amount of maintenance to be provided pursuant to the obligation mentioned in subsection (1) is to be determined in accordance with the guidelines. (3) On application, the court shall order maintenance for child in accordance with the guidelines. (7) An order made pursuant to this section continues in effect after the eighteenth birthday of the person for whom maintenance is payable where the person is: (a) under the claimant’s charge; and (b) unable, by reason of ... pursuit of reasonable education or other cause to: (i) withdraw from the claimant’s charge; or (ii) obtain the necessaries of life. 4(1) In this section “parent” means, with respect to person described in subsection (2): (a) the father or mother of the person, whether the person was born within or outside marriage.... (2) On the application of parent of person who is 18 years of age or older, the court may order the person’s other parent to pay maintenance to the claimant for the benefit of the person if the person is: (a) under the claimant’s charge; and (b) unable, by reason of ... pursuit of reasonable education or other cause, to: (i) withdraw from the claimant’s charge; or (ii) obtain the necessaries of life. (3) Every parent has an obligation to provide maintenance for person described in subsection (2) in accordance with the guidelines or, if the court considers that amount to be inappropriate, in an amount the court considers appropriate, having regard to the needs, means and economic circumstances of the person described in subsection (2) and the ability of each parent to contribute to the maintenance of that person. 10(1) Where an order for maintenance has been made pursuant to this Act or any previous Act which provided for maintenance for child ... or person described in subsection 4(2), and the court is satisfied that there has been material change in circumstances since the order was made, the court, on application may: (a) discharge, vary or suspend any term of the order, prospectively or retroactively.... The Family Maintenance Regulations, 1998, R.R.S, c. F‑6.2, Reg. 3(1) The Child Support Guidelines, as amended from time to time, are adopted for the purposes of maintenance orders pursuant to section or or the Act. (2) In applying the Child Support Guidelines for the purposes of the Act and these regulations, reference to spouse in the Child Support Guidelines is to be read as reference to parent as defined in section or or the Act, as the case may require. Re: 1. Was Warren person within the meaning of s. 4(2) of The Family Maintenance Act, 1997, after July 2004? [21] In Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.), the Saskatchewan Court of Appeal outlined number of factors court should consider in determining whether an adult child who is attending post-secondary education qualifies as “a child of the marriage” pursuant to s. of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). The factors are equally applicable to the application before me. The factors set out in Zaba, supra, are the following: (a) Is the child eligible for student loans or other financial assistance” (b) Are the child’s career plans reasonable? (c) The ability of the child to contribute to his or her own support; (d) What were the parental plans for the child’s education, particularly those made during cohabitation? (e) Has the child unilaterally terminated his or her relationship with the payor? (f) Could the child reasonably have expected assistance if the marriage had not broken down? [22] Other factors which courts have considered in making this determination are the age of the child, the child’s academic ability, the possibility of securing employment at the end of the course of study and whether the child is full-time or part-time student. [23] As indicated by Madam Justice Ryan-Froslie in Fergusson v. Kurylo, 2005 SKQB 131 (CanLII); (2005) 264 Sask. R. 119 (Q.B.) at para. [8] Generally speaking, 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. Whatever course of study is chosen by the child, the length of time for which the parent will be required by law to support that course of study will depend on the reasonableness of the choice and the means and needs of the child and parent. (See: Jamieson v. Jamieson (1995), 1995 CanLII 6227 (NB CA), 14 R.F.L. (4th) 354 (N.B.C.A.); English v. English (1995), 1995 CanLII 5733 (SK QB), 16 R.F.L. (4th) 250 (Q.B.); Smith v. Smith (1990), 1990 CanLII 8083 (MB CA), 27 R.F.L. (3d) 32 (Man. C.A. )).... [24] The burden is on the applicant to prove the adult child’s ongoing economic dependence. [25] Warren completed Grade 12 in July 2004, having turned 18 in February. He then returned to highschool in the fall of 2004. He worked at McDonald’s during that year and continued to live at home with his mother, who provided him with room and board. Thereafter he attended SIAST and then commenced his classes with New Media. [26] Warren is still under Ms. Brown’s charge as he continues to live with her rent free. She provides him with room and board and some additional assistance in the form of high speed internet access in order for him to be able to continue with his studies. He is only 19 years of age and has been diligently pursuing his education. The fact that he has changed his course of study will not disentitle him to consideration for support. [27] He is eligible for student loans and he has applied for and received same. He has been continuously employed on part-time basis in order to contribute to his own support. He has changed employment recently, which has resulted in him receiving higher hourly wage, but fewer hours. He deposes, and accept, that this was done to permit him to devote more time to his school work. [28] I am satisfied on the basis of the evidence before me that Warren is a person within the meaning of s. 4(2) of The Family Maintenance Act, 1997 and that he has had that status on a continuing basis to the present time. This will continue until March 13, 2006 when he has completed his current course of study with New Media. Warren has deposed that it would be his hope and intention to enroll in the second year of his program, which would commence in September of 2006. therefore direct that there be review of Warren’s status in August of 2006 on chambers date to be fixed by the parties. Re: 2. What is Mr. Brown’s income? [29] Mr. Brown’s income has fluctuated in the past three years. No evidence has been presented that the 2004 income is indicative of future years. Accordingly, it is appropriate to take an average of the last three years to determine his income for the purposes of determining the appropriate amount of maintenance to be paid. (See: MacDonald v. Rasmussen, 1997 CanLII 11182 (SK QB), [1998] W.W.R. 588; (1997) 161 Sask. R. 103 (Sask. Q.B.); Woods v. Woods, (1998), 1998 CanLII 14068 (SK QB), 171 Sask. R. 170 (Q.B.)). [30] Accordingly, find Mr. Brown’s income to be $21,953.52, as set out in his financial statement. Re: 3. On what basis should Mr. Brown’s obligations be determined? [31] The presumptive approach in circumstances where child is residing with parent while pursuing post secondary education would be the table amount plus proportionate allocation of the reasonable and necessary expenses of Warren’s post‑secondary education. [32] The party seeking to exclude the application of the Guidelines must establish that applying them would be inappropriate. This is two-step process. Initially there ought to be determination of the applicable table amount and the amounts which may be appropriate under s. 7. (See S.D.B. v. P.W. (1998), 47 R.F.L (4th) 228 (N.S. Fam. Ct.) MacDonald v. Rasmussen, 2000 SKQB 494 (CanLII); (2000), 198 Sask. R. (Q.B.)). Applying the Guidelines would mean table amount of $181.00 per month. [33] Warren’s monthly income consists of his CPP child benefit of $195.96 per month, employment income of approximately $500.00 per month and Saskatchewan Student Loan payments of $380.00 per month. His total monthly income is $1,075.96. [34] His necessary school expenses are the following: CD’s $50.00 per month, high speed internet access $49.95 per month; tuition to New Media $716.00 per month. That would leave Warren with surplus of $260.01 per month. Warren has identified other expenses which are not directly related to school. He has loan payment to TD Canada Trust of $100.00 which relates to previous post-secondary expenses. Ms. Donald has abandoned her claim for any retroactive post-secondary expenses. Requiring Mr. Brown to contribute to the payment of this loan would indirectly accomplish the same result. Accordingly, it will not be taken into account. That leaves claim for $155.00 for gas, licence and insurance; $100.00 for hair care, toiletries and clothing; and $180.00 for entertainment and recreation. Given that Ms. Donald actually pays the cost of high speed internet access this leaves Warren with monthly shortfall of approximately $250.00 per month of which only $150.00 would be considered as shareable expense by the parties. [35] Ms. Donald’s income is $11,364.36. Mr. Brown’s income has been found to be $21,953.52. Their pro-rata share would then be 34% and 66% respectively or $51.00 and $99.00. [36] It would not be appropriate for the Court’s analysis to stop here. Some attention must be paid to the financial ability of each parent to contribute. In the Annual Review of Family Law, 2004 (Toronto: Thomson Carswell, 2004) James G. McLeod at p. 127 said the following: (ii) Adult Children Where child is the age of majority or older, unless otherwise provided under the Guidelines, the amount of child support is the amount determined by applying the Guidelines as if the child were under the age of majority or, if this would be inappropriate, the amount that court considers appropriate 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: Minty v. Minty (2003), 2003 CarswellOnt 4354 (S.C.J.) (court applying presumptive rule); Black v. Black, 2003 CarswellSask 860, 2003 SKQB 521 (CanLII), 246 Sask. R. 174 (Q.B.) (presumptive rule where child attended school year round).... [37] Here, after deducting the table amount, on an income of $21,953.52, Mr. Brown would have a gross annual income of $19,781.52. On that basis I am not prepared, even in the face of some shortfall for Warren to order Mr. Brown to pay any additional amounts. [38] I do find, however, that as Ms. Donald is supporting Warren by providing him with room and board, that Mr. Brown has an obligation to provide his support as well, and that the Guideline amount is the appropriate amount to be paid until the end of this year’s study on March 13, 2006. Re: 4. Conclusions [39] Accordingly, Mr. Brown is ordered to pay to Ms. Donald for the maintenance of Warren Brown, born February 26, 1986, the sum of $181.00 per month commencing September 1, 2005 and payable on the first of each and every month thereafter up to and including February 1, 2006. Mr. Brown is ordered to pay the sum of $90.50 on March 1, 2006 for the month of March 2006. further direct that on the application of Ms. Donald, there be review of whether or not Warren is then person within the meaning of s. 4(2) of The Family Maintenance Act, 1997 in August of 2006. [40] Mr. Brown’s applications are dismissed. In the circumstances of the issues before the Court decline to make any order as to costs.
The petitioner seeks an order for ongoing child support based on the Federal Child Support Guidelines. The respondent seeks an order that his child support obligations for their child ended July 2004 because their child ceased to be a person within the meaning of The Family Maintenance Act as he was not, by reason of the pursuit of reasonable education, unable to withdraw from his mother's charge. HELD: 1) The child completed grade 12 in 2004 having turned 18 in February. He returned to high school in the fall of 2004. He worked at McDonald's during that year and lived with his mother. Thereafter he attended SIAST and then commenced classes with New Media. He is still under his mother's charge. She provides him with room and board. He is only 19 years old. He has been pursuing his education. The fact that he changed his course of study does not disentitle him to consideration for support. He is a person within the meaning of s. 4(2) of the Act. This will continue until March 2006 when he has completed his current course of study. 2) The respondent's income fluctuates. It is appropriate to take an average of the last 3 years to determine his income.  3) Some attention must be paid to the financial ability of each parent to contribute. After deducting the table amount, the respondent would have a gross annual income of $19,781.52. On that basis the court was not prepared, even in the face of some shortfall for the child, to order the respondent to pay any additional amounts. The guideline amount is the appropriate amount to be paid until the end of this year's study.