nan 2003 SKQB 286 DIV A.D. 1999 No. 212 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SHELLY MARIE HARDER and ALLAN ROBERT HARDER RESPONDENT E.A. Connick for the petitioner Allan Robert Harder on his own behalf FIAT RYAN-FROSLIE J. June 19, 2003 [1] Pursuant to s. 17 of Divorce Act, R.S.C. 1985, c. (2nd Supp.), the applicant, Allan Harder, seeks to vary child support order made May 17, 2002. [2] Mr. Harder argued that variation of the order is warranted because his income has decreased as result of his being laid off his employment, that the parties’ oldest child, Jasmine, is no longer child within the meaning of the Divorce Act and that Jasmine’s s. expense for riding lessons has not been incurred for more than year. Shelly Harder opposes the application arguing Mr. Harder’s lay-off is only temporary, that Jasmine continues to be child of the marriage and that Jasmine will be resuming riding lessons at the end of May, 2003. Ms. Harder also asked this Court to increase Mr. Harder’s contribution for her son’s hockey, golf and baseball expenses. [3] The issues are as follows: 1. Has there been a change of circumstance since May 17, 2002 which would warrant variation of the support order? 2. Is Jasmine a child of the marriage within the meaning of the Divorce Act? 3. Does Mr. Harder have an obligation to contribute to Jasmine’s riding lessons? 4. Mr. Harder’s income for child support purposes. 5. Should Sloane’s s. 7 expenses (hockey, golf and baseball) be increased? [4] The facts are not in dispute. [5] The parties were married on June 14, 1980 and separated in 1998. They have two children, namely: Jasmine Marie Harder, born November 10, 1984 (age 18) and Sloane Allan Harder, born April 8, 1986 (age 17). [6] On May 17, 2002, Justice Milliken granted consent judgment pursuant to the Divorce Act. In that judgment, Mr. Harder’s income for child support purposes was set at $39,219 and Ms. Harder’s income for child support purposes was set at $23,945. Mr. Harder was ordered to pay child support of $534 per month for Jasmine and Sloane commencing September 1, 2001 plus $70 per month for Jasmine’s riding lessons and $60 per month for Sloane’s hockey. [7] At the time the judgment was granted, both children were under the age of 18 and in full-time attendance at school. Jasmine turned 18 on November 10, 2002. She graduated from Grade 12 in January, 2003 and on February 10, 2003 started full-time employment with Mitchell’s Gourmet Foods Inc. earning $8.50 per hour, 37 hours per week. Jasmine was laid off this employment for two weeks in March, 2003. Other than this two-week lay-off, she has been employed full time. [8] The evidence indicates Jasmine intends to take 13-month executive administrator course commencing in September, 2003. Her tuition and books for that course are estimated at $7,135 and $1,300, respectively. Jasmine has applied for student loan. She has savings of $600. There is no indication what amount Jasmine will receive from the loan or what other resources may be available to her for funding her post-secondary education. Jasmine resides with her mother, rent free. [9] In May, 2002, in support of the application for judgment, Ms. Harder filed material indicating Jasmine was taking riding lessons. Ms. Harder sought contribution from Mr. Harder for the cost of those lessons in the amount of $70 per month. In fact, Jasmine’s horse had been injured in April, 2002 and she was not taking riding lessons at the time the judgment was granted, nor has she taken riding lessons since April, 2002. Ms. Harder’s affidavit of May 27, 2003 attests that Jasmine will resume her riding lessons the week of May 27, 2003. [10] The parties’ son, Sloane, is 17 and continues to be in full-time attendance at school. He is involved in hockey, golf and baseball. Ms. Harder’s financial statement sworn May 27, 2003 shows the cost for these extracurricular activities as $1,901.24 per year. This is the same amount, for the same activities, as set out in her financial statement of July 20, 2001 and filed in support of the original application for divorce. [11] Mr. Harder is sheet metal worker. At the time of Justice Milliken’s judgment, he was employed at Pow City Mechanical earning $39,219 gross per year. Ms. Harder was employed by the Saskatoon Health District Board earning $23,945 per annum. [12] Mr. Harder was laid off his employment prior to the filing of his application for variation. He receives employment insurance of $414 per week before deductions ($21,528 per annum). Following the filing of his application for variation, Mr. Harder was employed at Estevan, Saskatchewan for brief period of time. [13] Mr. Harder earned $39,259 in 2002 according to his 2002 Notice of Assessment from Canada Customs and Revenue Agency. He paid union dues of $1,843 leaving net income for child support purposes of $37,416. [14] Ms. Harder is still employed with the Saskatoon Health District. She earned $30,285 in 2002 according to her 2002 Notice of Assessment from Canada Customs and Revenue Agency. According to her pay stub, Ms. Harder pays union dues of $14.15 every two weeks or $367.90 per year leaving net income for child support purposes of $29,917. 1. Has there been change of circumstance since May 17, 2002 which would warrant variation of the support order? [15] Section 17(4) of the Divorce Act provides that before court makes variation order in respect of child support order, the Court must satisfy itself that change of circumstances as provided for in the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] has occurred since the making of that order or the last application for variation. [16] Section 14 of the Guidelines sets out that “...any change in circumstances that would result in different child support order or any provision thereof...” is circumstance that will give rise to variation. [17] In support of his application, Mr. Harder claims three changes in circumstances, namely: 1. that Jasmine is no longer child within the meaning of the Divorce Act; 2. that Jasmine has not been taking riding lessons for more than year; and 3. that his income has decreased as result of his unemployment. If any of these circumstances are established, it would come within the meaning of s. 14 of the Guidelines and would warrant variation of the current order. 2. Is Jasmine child of the marriage within the meaning of the Divorce Act? [18] For the purpose of the Divorce Act, “child of the marriage” is defined in s. as “...a child of two spouses or former spouses who, at the material time 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”. [19] Ms. Harder argues that Jasmine is still child of the marriage because she is living with Ms. Harder, she intends to take post-secondary education in September, 2003 and she requires financial support in the interim so that she can save money to go to school and pay off debt to SGI. That debt is the result of an automobile accident Jasmine was involved in with an unregistered vehicle. As of May 27, 2003 Jasmine owes SGI $721. She is paying $100 per month towards this debt. [20] The definition of “child of the marriage” has been considered in numerous cases. The law is well-settled that the pursuit of post-secondary education may be sufficient reason for an adult child’s inability to withdraw from their parents’ charge or obtain the necessaries of life. That inability however must be proved. The burden of proof lies on the party seeking support, in this case Ms. Harder. See: Duncan v. Duncan (1989), 1989 CanLII 4502 (SK QB), 74 Sask. R. 100 (Q.B.); Hildebrandt v. Rossmo, [1997] S.J. No. 630 (Q.B.); and Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.). [21] The Saskatchewan Court of Appeal in Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.) set out number of factors court should consider in determining whether an adult child continues to be “child of the marriage” by reason of the pursuit of post-secondary education. The British Columbia Supreme Court in Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. S.C.) and the Saskatchewan Court of Queen’s Bench in MacDonald v. Rasmussen (2000), 2000 SKQB 494 (CanLII), 198 Sask. R. (Q.B.) have suggested additional factors for consideration. The factors enunciated in these three cases may be summarized as follows: 1. whether the child is in fact enrolled in course of studies and whether that enrollment is full time or part time; 2. the age of the child; 3. the child’s past academic performance; 4. whether the child has reasonable career plans; 5. whether the child is demonstrating success in their chosen course of studies; 6. whether the child is eligible for student loans or other financial assistance; 7. the ability of the child to contribute to his or her own support through part-time employment; 8. parental plans for the child’s education, particularly those made during cohabitation; 9. whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought; 10. whether the child could reasonably have expected support from the parents if the marriage had not broken down. [22] In this case Jasmine is not enrolled in school, nor is she taking any classes, though her “plan” is to do so in the fall of 2003. It is undisputed that Jasmine is currently employed full time earning $8.50 per hour. She has had this employment since February 10, 2003, although she was laid off for two weeks in March. There is no evidence as to the reasonableness of Jasmine’s plans or her ability to contribute to the cost of any post-secondary education she decides to pursue. The factors set out in Zaba, Farden and MacDonald, supra, have not been covered by the material. Based on the evidence, cannot find that Jasmine is “child of the marriage” within the meaning of the Divorce Act. She is currently employed full time and while her income is low, it would be sufficient to provide her with the necessaries of life. Saving money for school and paying off debts does not constitute an “other cause” as contemplated in the Divorce Act definition of “child of the marriage”. Choosing not to withdraw from her mother’s care is not the same as being unable to withdraw from that care. [23] While an adult child may require reasonable length of time to become financially independent after finishing school or attaining the age of majority, that time certainly arrived in this case by the end of March, 2003. By that time Jasmine had obtained full-time employment and had received at least full month’s wages. This case is distinguishable on its facts from the case of Bain v. Bain (1994), R.F.L. (4th) 451 (Man. Q.B.) where the parties had reached an agreement to continue support for their daughter. It is also distinguishable on its facts from Mitchell v. Mitchell (1992), 1992 CanLII 8039 (SK QB), 41 R.F.L. (3d) 443 (Sask. Q.B.) where the child was “forced” by her father to remain out of school until her car debt was paid. Moreover, in Mitchell, the child in question was in full-time attendance at post-secondary institution, circumstance that does not exist in this case. I find that Jasmine ceased to be a child of the marriage within the meaning of the Divorce Act effective March 31, 2003. [24] Should Jasmine follow through with her plan and actually commence post-secondary education she may requalify as “child of the marriage”. See: Horvath v. Horvath, 2000 MBCA 93 (CanLII); (2000), 150 Man. (2d) (C.A.); Stocchero v. Stocchero (1997), 1997 ABCA 196 (CanLII), 29 R.F.L. (4th) 223 (Alta. C.A.); and Olsen v. Olsen (1997), 1997 CanLII 11249 (SK QB), 159 Sask. R. 67 (Q.B.). In that event, application may be made to seek support from Mr. Harder. In bringing such an application, Ms. Harder should keep in mind the considerations listed herein and provide the necessary evidence to support Jasmine’s claim. 3. Does Mr. Harder have an obligation to contribute to Jasmine’s riding lessons? [25] As Jasmine is no longer a child of the marriage, Mr. Harder has no obligation to contribute towards the costs of her riding lessons pursuant to s. 7(f) of the Guidelines. [26] It is noted that no expense has been incurred for Jasmine’s riding lessons since May, 2002, the very month in which the judgment being varied was rendered. The undisputed evidence is that Jasmine’s last riding lesson occurred in April, 2002. The fact Ms. Harder has received money from Mr. Harder for this expense when it was not actually incurred is reprehensible. Parents who receive contribution for s. expenses have an obligation to terminate those payments when the s. expense is no longer incurred. Ms. Harder’s actions have resulted in her receiving $70 per month from Mr. Harder for riding lessons which never took place. She has received $980 ($70 per month for 14 months) that she is not entitled to. Mr. Harder has indicated he does not want that money repaid to him. It is only the generosity of Mr. Harder that keeps this Court from making reimbursement order. Mr. Harder’s obligation to contribute to Jasmine’s riding lessons is terminated effective March 31, 2003. 4. Mr. Harder’s income for child support purposes. [27] Mr. Harder argues his income has decreased since the May, 2002 order because he was laid off his employment. The exact date Mr. Harder became unemployed is not known. In paragraph of his affidavit sworn April 23, 2003 Mr. Harder attests as follows: That at the time of the filing of this variation I, Allan Robert Harder, have been unemployed for over two weeks with vague knowledge of when may be hired in my trade as sheet metal worker. My present income is $414.00 per wk. from unemployment insurance before deductions. It is clear that while Mr. Harder is currently unemployed, he has “vague knowledge” of when he may be rehired. That knowledge was not shared with this Court. [28] copy of Mr. Harder’s 2002 income tax return was not filed in support of this application. review of the financial information filed prior to Justice Milliken’s judgment of May, 2002 indicates that Mr. Harder received employment insurance benefits in 1999 and 2000. There are no documents filed with this Court to substantiate whether or not employment insurance was received by him either in 2001 or 2002. Mr. Harder’s employer has at all relevant times been Pow City Mechanical. [29] The burden of proving change in income which would constitute change in circumstance lies with Mr. Harder. As the Supreme Court of Canada stated in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670, the change must be of such magnitude that if the court had known of the change of circumstance at the time the original order was granted, it is likely the order would have been made in different terms. Based on the evidence, Mr. Harder has not met this burden. His affidavit material indicates he has some knowledge of when he will be rehired. The financial information indicates he has received employment insurance in the past. In order for change in income to warrant change in child support, that change must be significant and long-lasting. Temporary unemployment will not qualify as such change especially if it is regular circumstance of the payor’s employment. The total income potential of the payor must be examined in order to determine whether reduction has in fact occurred. Such reduction cannot be found in this case on the evidence presented. This decision is made without prejudice to Mr. Harder to reapply to this Court should his unemployment continue for an extended period. [30] find that Mr. Harder’s income for child support purposes is $37,416 being the income shown on his 2002 Notice of Assessment less his union dues. find Ms. Harder’s income for child support purposes to be $29,917 being the income shown on her 2002 Notice of Assessment less her estimated union dues. It is hereby ordered that Mr. Harder shall pay to Ms. Harder for the support of their son, Sloane Allan Harder, born April 8, 1986, the sum of $308 per month commencing April 1, 2003 and continuing on the first day of each and every month thereafter so long as Sloane remains a child within the meaning of the Divorce Act. 5. Should Sloane’s s. expenses (hockey, golf and baseball) be increased? [31] Ms. Harder claims an increase in Mr. Harder’s contribution to their son’s extracurricular activities. In argument she admitted these activities are the same activities that Sloane was engaged in at the time of Justice Milliken’s judgment in May, 2002 and that the cost of those activities is identical to the cost claimed at that time. The judgment provides that Mr. Harder contribute only to Sloane’s hockey expenses. There is no change in circumstance that would warrant expanding that judgment to include costs for Sloane’s golf or baseball expenses. These activities and their costs were known and considered at the time of the May, 2002 judgment. [32] Ms. Harder argues that in calculating Mr. Harder’s share of Sloane’s hockey expenses, the judgment contemplated that the parties would split bingo proceeds which would help defray some of the hockey costs. She attests that Mr. Harder did not do this. She alleges he received $150 from bingos which were used to defray his personal expenses in attending Sloane’s tournaments as opposed to reducing Sloane’s hockey expenditures. Exhibit “A” attached to Ms. Harder’s affidavit of May 27, 2003 indicates that Sloane’s account had surplus of $272.85 in it and that Mr. Harder had earned only $50 from bingo which was credited to his personal account. The judgment refers only to the splitting of bingos. The balance of the money earned by Mr. Harder related to the washing of uniforms and does not fall within the terms of the judgment. The evidence does not establish that the bingos were not split. Even if this Court accepts that Mr. Harder earned $50 from bingos which should have been attributed to Sloane’s expenses, there is no evidence of how failure to do so affected the sharing of costs between Ms. Harder and Mr. Harder. There is no evidence to support Ms. Harder’s claim for an increase in contribution for Sloane’s extracurricular activities. [33] Ms. Harder’s income has increased since the May 17, 2002 judgment from $23,945 per annum to $29,917 per annum. Ms. Harder attests that she will be undergoing surgery and will be off work for period of time. She does not provide any information as to the length of time she will be off work or how that may affect her projected income for 2003. Mr. Harder’s income for child support purposes is $37,416 per annum. In light of the parties’ current incomes, Mr. Harder’s proportionate share of Sloane’s s. 7(f) hockey expenses should be reduced to 55.57%. [34] Neither the May 17, 2002 judgment nor the material filed with this Court sets out the amount of Sloane’s hockey expense. That amount, however, can be calculated based on the fact that Mr. Harder’s 62% of those expenses totalled $60 per month. Based on that, the annual hockey expense is $1,161.29. Mr. Harder’s 55.57% of that amount would be $54 per month. [35] Mr. Harder shall pay to Ms. Harder for Sloane’s s. 7(f) hockey expenses the sum of $54 commencing June 1, 2003 and continuing on the first day of each and every month thereafter so long as that expense is incurred by Sloane. [36] Pursuant to rule 608(2) of The Queen’s Bench Rules of Court there is presumption that successful party is entitled to the costs of family law proceeding or step in family law proceeding. In this case Mr. Harder was successful in his application. Normally, self-represented parties are not awarded costs. However, costs are warranted in this situation because of Ms. Harder’s refusal to terminate Mr. Harder’s s. contribution for Jasmine’s riding lessons even though that expense was not being incurred. The unreasonableness of her position warrants an assessment of costs. Costs provide some compensation to party for legal expenses as well as disbursements incurred for the application. order that Ms. Harder pay to Mr. Harder as costs of the within application the sum of $250 being Mr. Harder’s estimated out-of-pocket expenses. These costs are payable forthwith. See: Fry v. Hendrickson (1998), 1998 CanLII 13542 (SK QB), 166 Sask. R. 305 (Q.B.). [37] There shall be an order varying Justice Milliken’s judgment of May 17, 2002 with respect to child support and s. expenses as follows: 1. That Jasmine ceased to be a child of the marriage within the meaning of the Divorce Act effective March 31, 2003. Mr. Harder’s obligation to provide ongoing support to Jasmine and his contribution for s. 7 expenses relating to her riding lessons shall terminate as of that date. 2. find that Mr. Harder’s income for child support purposes is $37,416 per annum and Ms. Harder’s income for child support purposes is $29,917 per annum. Mr. Harder shall pay to Ms. Harder for the support of Sloane Allan Harder, born April 8, 1986, the sum of $308 per month commencing April 1, 2003 and continuing on the first day of each and every month thereafter so long as Sloane remains a child within the meaning of the Divorce Act. 3. Ms. Harder’s application to increase Mr. Harder’s contribution for Sloane’s extracurricular activities is dismissed. 4. I find that Sloane’s current hockey expense is approximately $1,161.29 per annum. Mr. Harder shall pay to Ms. Harder his proportionate share of that expense being 55.57% or $54 per month commencing June 1, 2003 and continuing on the first day of each and every month thereafter so long as that expense is incurred by Sloane. 5. Ms. Harder shall pay to Mr. Harder costs of the within application in the sum of $250, payable forthwith.
FIAT. At issue was whether there a change of circumstances, which would warrant a variation of the 2002 child support order; whether the 18 year old continued to be a child within the meaning of the Divorce Act; does the father have an obligation to contribute to his daughter's riding lessons; the father's income for child support purposes; should the 17 year old son's s.7 expenses be increased; costs. HELD: 1)The daughter had ceased to be a child of the marriage within the meaning of the Divorce Act and the father's obligation to provide on-going support and his contribution for s.7 expenses relating to her riding lesson terminated in March 2003. 2)The father shall pay $308 per month for support of his son commencing April 1, 2003 and every month thereafter so long as he remains a child within the meaning of the Divorce Act. 3)The mother's application to increase the father's contribution for the son's extracurricular activities was dismissed. The father shall pay $54 per month for hockey expenses commencing June 2003 and every month thereafter. 4)The mother was to forthwith pay costs of the application fixed at $250.