J. 2002 SKQB 72 Q.B. A.D. 1990 No. 011887 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SHIRLEY ANN McCONNELL and KENNETH BRENT McCONNELL RESPONDENT J.T. Schuck for the petitioner G.B. Heinrichs for the respondent JUDGMENT McINTYRE J. February 28, 2002 [1] Both parties seek to vary the existing child support order of June 30, 1999. They have two children, Luke, age 21 and Amanda, age 18. Under the terms of the order of June 30, 1999 the respondent was paying child support in the amount of $987.00 per month on the basis of an income of $80,278.00. [2] The respondent paid the child support due under the order of June 30, 1999, for the months of July and August, 1999. Luke decided not to go to university that fall and the respondent ceased paying child support for Luke. Luke worked in Regina at Canadian Tire until November, 1999 when he moved to Banff, Alberta where he had employment. In 1999 Luke earned $9,784.56 and in 2000 he earned $18,760.27. Luke earned $11,177.69 in 2001 in Banff prior to his return to Regina at the end of June. Luke worked during July and August at Canadian Tire in Regina. He returned to his mother’s home in August and commenced full time studies at the University of Regina in September. He continues to work part time. [3] Luke was approved for $3,543.00 in student loans. When he was approximately $450.00 short of the amount required for his books and other university costs when school commenced in September, 2001, the respondent paid that shortfall. Luke has also been approved for $5,000.00 student line of credit with the Bank of Montreal. The respondent arranged for the line of credit and is guarantor on that loan. [4] It is the respondent’s position that Luke is not child of the marriage inasmuch as he is not dependent upon his parents for the necessaries of life. It is the respondent’s position that Luke’s tuition and books have been covered by his student loan and the contribution from his father. Luke receives $203.00 per month as living allowance from his student loan and earns approximately $475.00 per month from his part time employment. He also has $5,000.00 line of credit which he can draw upon. [5] From September 1999 to and including June 2001, the respondent paid the petitioner $611.00 per month being the child support due for one child based upon his income. He has paid no child support since then. [6] Amanda graduated from Grade XII in June 2001. She worked over the summer at Canadian Tire, saving approximately $940.00. In September 2001 Amanda commenced studies at the University of Calgary. Amanda was approved for Canada and Saskatchewan Student Loans totalling $8,784.00 for the school year. This consisted of monthly living allowance of $504.00 and $5,270.00 for tuition, books and dormitory fees. The respondent says the funds advanced to his daughter in September were not sufficient to cover her actual startup costs and that he paid the shortfall. [7] Subsequent to these applications being brought the parties acknowledge that Amanda has decided to return to Regina. She will be attending the University of Regina commencing January 2002 and will be residing with the petitioner. Given that Amanda has returned to Saskatchewan and is living at home, one assumes her student loan entitlement is not the same as when she was attending the University of Calgary but no particulars were provided to the court. Given that Luke receives $203.00 per month as living allowance it is assumed that Amanda may be entitled to similar amount. [8] It is the respondent's position that there is no child support due for Amanda for the period September to December, 2001, given that she was living in Calgary and all her costs were covered through student loans and payments made directly to her by the respondent. The respondent says he should pay child support for Amanda commencing January 1, 2002, based upon the Table amount for one child, reduced by the living allowance received by Amanda under her student loan. [9] The petitioner says that both children remain children of the marriage as contemplated by the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and unable to withdraw from their parents' charge by reason of their attendance at university: Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205. It is argued that under the Federal Child Support Guidelines [SOR-97/175, as am.] (the "Guidelines") s. 3(2)(a) amounts to presumption that child support is to be determined as if the children were under the age of majority and the presumption can only be rebutted by the respondent discharging an onus of establishing that such approach is inappropriate. The petitioner further says that when the June 30, 1999, order was made Luke was 18 and had recently graduated from high school. It is said the order was made with the understanding Luke would be attending university and any s. expenses would be determined at later date. As such it is argued that all that has changed is the fact the respondent's income has increased. The petitioner says that she has substantial expenses given that she is providing shelter and sustenance. [10] The petitioner acknowledges that the children are assuming responsibility for most of their education costs by taking student loans. It is argued that Luke's income in 2000 and 2001 was expended on his own living expenses and any part-time income that the children may have will reduce their entitlement to living allowance under their student loans. Given that the respondent will be relieved from contributing to much of their education expenses it is argued that it would be unfair that he should also receive full advantage of their employment earnings. It is the petitioner's position the respondent should pay the Table amount of support for both children and his proportionate share of post-secondary expenses not covered by student loans. The petitioner also seeks payment of arrears for the period July to December 2001. [11] Pertinent provisions of the Divorce Act and the Guidelines include: Divorce Act 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 who 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. 1. The objectives of these Guidelines are (a) to establish fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances. 3.(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. (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 condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [12] In the case of children of the age of majority or over attending post- secondary educational program, the determination of child support obligations often remains point of contention between parents despite the existence of the Guidelines and the effort to make the calculation of child support orders more objective. In order that there be an obligation to pay support for such child the applicant must demonstrate that the child, by virtue of the pursuit of post-secondary education is unable to withdraw from the charge of his or her parents or obtain the necessaries of life without support from parents. [13] Courts have tended to regard child over the age of majority who is in full-time attendance at an educational institution and engaged in reasonable pursuit of further education or training to be "child of the marriage" and entitled to support. While there may be presumption of entitlement in such circumstances it does not entirely discharge the onus on the applicant as it must be demonstrated that the child, by reason of such pursuit of education, is unable to withdraw from the charge of parents or to obtain the necessaries of life: Wahl v. Wahl (2000), 2000 ABQB 10 (CanLII), R.F.L. (5th) 307 (Alta. Q.B.). Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master) is oft quoted for the following list of relevant circumstances to be considered by the court, at p. 64: (1) whether the child is, in fact, enrolled in course of studies and whether it is full-time or part time[sic] course of studies; (2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance; (3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of mature child who has reached the age of majority, whether or not the child has unilaterally terminated relationship from the parent from whom support is sought. [14] Our Court of Appeal in Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 similarly observed that in determining whether an "adult child" in attendance at university qualifies as "child" under the Act and, if so, the extent of the obligation of parents to support their child: [10] requires the court to consider many factors including: whether the child is eligible for student loans or other financial assistance, whether the chid has reasonable career plans, the ability of the child to contribute to his or her own support through part-time employment, parental plans for the child's education, particularly those made during cohabitation, and at least in the case of mature child who has reached the age of majority, whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought. further consideration is whether the child could have reasonably expected one or both of the parents to have continued to furnish support if the marriage had not broken down. [15] While it would appear beyond debate that an adult child must make reasonable efforts to contribute to his or her support and education, it is not so clear how this is to be applied in an individual circumstance. James G. McLeod, in an annotation to Wahl, supra, observed at p. 310: What investment must child make in his or her future? Does family's historical value system affect whether child should be required to apply for loan? Should taxpayers' money be used to provide an education for child whose family is able to do so? Why should separated family lose access to government funds that are available to non-separated families? [16] To these questions may be added others. If the family had not separated and if the child would not have been entitled to student loan on account of the parents' resources, to what extent should the fact of separation entitle the payor to eliminate or reduce child support obligation by requiring the child to obtain student loan because the child now qualifies given the resources of only the "custodial" parent? To what extent should an adult child be expected to graduate with substantial debt load if one or both of the parents have the resources to contribute? If the family unit had remained in tact and the child living at home while attending university, one assumes that in most cases the child would be provided with food and shelter even if the child had the resources through combination of earnings and student loans to cover his or her direct education expenses and personal expenditures. If that family is separated to what extent ought the student's earnings reduce payor's obligation to contribute to the expenses of food and shelter? When the child was in Grade XII the payor's contribution to food and shelter is quantified by the Guidelines as falling within the Table amount of support. Does the quantification of this obligation change few months later? [17] The Court of Appeal in couple of recent decisions have dealt with applications involving the support of adult children. Hagen v. Rankin 2002 SKCA 13 (CanLII); [2002] S.J. No. 15 involved an 18 year old residing with his mother while attending university. The child earned in excess of $9,000 in 2000 and was expected to earn in excess of $11,000 in 2001. He worked full-time during the summer and part-time during the academic year. He had access to an education fund which contributed $2,000 towards his tuition and books. The payor had an income of $79,300 and had been ordered to pay Table support of $605 per month. It was argued on appeal the chambers judge erred in failing to determine child support pursuant to s. 3(2)(b) in light of the income earned by his son. The Court of Appeal observed: ¶8 In considering whether, in light of these circumstances, the chamber judge misapplied the provisions of subsection 3(2) of the Guidelines, we had regard for two lines of principle bearing upon the matter. The first derives from Zaba v. Bradley, cited earlier, and goes to the obligation of the child. The second derives from Dergousoff v. Dergousoff, 1999 CanLII 12250 (SK CA), [1999] 10 W.W.R. 633 (Sask. C.A.), and goes to the obligation of the parents. ¶9 In Zaba, this Court held that in determining whether child, who has reached the age of majority and is attending university, continues to be "child of the marriage" and, if so, the extent of the legal obligation of each of the parents to contribute to the support of the child, the court should have regard, among other considerations, for the ability of the child to contribute to his or her own support through part-time employment. As this clearly implies, and as the Court of Queen's Bench has occasionally held, such children are expected to contribute to their own support to the extent reasonably possible before looking to their parents and their parents' exceptional legal obligation to continue to provide support while adult children attend university and are, for that reason alone, unable to get by on their own. (See, for example, Simpson v. Palma (1998), 1998 CanLII 13976 (SK QB), 171 Sask. R. 89 (Sask. Q.B., per Zarzeczny J.) and Meyers v. Meyers, [1998] S.J. No. 265 (Sask. Q.B., per Dovell J.)). ¶10 In Dergousoff, this Court held that provisions similar to those found in subsections 3(2)(a) and (b) of the Guidelines fall to be applied having regard not only for the presumed needs of the children, as reflected in the table amounts, but for their actual means and needs, as demonstrated by the evidence. The Court was there concerned with subsection 4(b)(ii) the[sic] Guidelines, which is cast in much the same language and is intended to achieve much the same purpose as subsection 3(2)(b). [18] In Dergousoff v. Dergousoff, 1999 CanLII 12250 (SK CA), [1999] 10 W.W.R. 633 (Sask. C.A.), the Court of Appeal determined that for the purposes of s. 4(b)(ii) the Table amount of support would be inappropriate if it falls short or exceeds the amount required for the intended purpose. In Hagen, supra, the court followed the same approach, observing: ¶14 The same reasoning applies in relation to subsection 3(2)(b) of the Guidelines. Hence, the presumption of subsection 3(1)(a), which is engaged by subsection 3(2)(a), is rebuttable, having regard for the actual needs of the children and respective means of the parents. ¶15 Turning to the case at hand with the principles of Zaba and Dergousoff in mind, and having regard for the circumstances, we are satisfied the chamber judge misapplied subsection 3(2) of the Guidelines by failing to have resort to the provisions of subsection 3(2)(b). In our respectful opinion, he ought to have determined the amount of support payable by the father in accordance with those provisions, which is to say he ought to have determined the amount having regard for the actual means and needs of Landon and the financial ability of each[sic] his parents to contribute toward his support. ¶16 That Landon is meeting his obligation to contribute to his own support is clear. He works as he can and earns something in the order of $11,000 year. This serves at once to reduce the extent of the legal obligation of his parents and to rebut the operative presumption. Still, the chamber judge awarded the table amount, an amount based on the full extent of the father's obligation and determined presumptively, irrespective of Landon's actual needs. ¶17 At best, Landon's actual needs do not extend beyond some assistance, perhaps, with his room and board. His father was prepared to pay $200 per month toward this end, which amounts to third of the table amount, given the father's annual income. Were Landon's mother prepared to do likewise, she would contribute $100 per month, being one third of the table amount, given her annual income. The total of $300, according to the evidence, would provide adequately for his need, especially when viewed in light of Landon's own financial resources. [19] Hamel v. Hamel, 2001 SKCA 115 (CanLII), [2001] S.J. No. 692 (Sask. C.A.) involved 19 year old in her first year of university after having taken one year off and worked. The payor had an income of approximately $50,000. The daughter had earned approximately $9,000 and had student loan of $3,700. The chamber judge concluded: The respondent resists any obligation to pay support to the petitioner on behalf of Christine. He says that the petitioner has not met the onus of demonstrating that Christine is unable to withdraw from her charge having regard to the factors enumerated in Bradley v. Zaba (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.). disagree. Christine is not in position to be self-sufficient and to provide herself with the necessaries of life while in full-time attendance at university. Her part-time earnings are sufficient only to meet her incidental expenses and her student loan only to cover her tuition and books. Christine remains "child of the marriage" as defined by the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and the petitioner is entitled to receive support on her behalf. In the circumstances of this case, it is not inappropriate to award the amount prescribed by the applicable Table. The majority of the court declined to find the chamber judge in error. [20] Francis v. Baker (1999), 1999 CanLII 659 (SCC), 50 R.F.L. (4th) 228 (S.C.C.) came down after Dergousoff, supra. While the issue was s. 4(b) of the Guidelines, the principles are equally applicable to s. 3(2)(b) because of the similarity in wording. Recasting the principles enunciated in Francis, supra, in the context of s. 3(2) the following may be said in the context of children of the age of majority or over. There is presumption that the appropriate measure of support is to be determined as if the child were under the age of majority that is to say the Table amount and s. if appropriate. In determining whether the presumptive rule is inappropriate the objectives of predictability, consistency and efficiency reflected in the presumptive rule must be balanced with those of fairness, flexibility and recognition of the actual condition, means, needs and other circumstances of the child and financial ability of each spouse to contribute. To establish inappropriateness there must be clear and compelling reasons to depart from the presumptive rule. The amount of support which the appropriate table would require cannot prima facie render it inappropriate. The factors relevant to determining inappropriateness include condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute. In considering child's needs the burden on the payor to establish inappropriateness is to demonstrate that they are so high as to "exceed the generous ambit within which reasonable disagreement is possible". The onus on person claiming that support calculated in accordance with s. 3(2)(a) is inappropriate is to establish that it is clearly inadequate or excessive. similar summary, albeit with respect to applications under s. is found in Metzner v. Metzner (2000), 2000 BCCA 474 (CanLII), R.F.L. (5th) 162, (B.C.C.A.) as reiterated in MacDonald v. MacDonald, 2002 BCCA 46 (CanLII), [2002] B.C.J. No. 121 (C.A.). It is clear from Francis that determining inappropriateness is not matter of the court determining what the budget ought to be and whether Table amount exceeds that budget. To revert to such an approach is to undermine the presumptive rule and the legislated objectives of predictability, consistency and efficiency. To be inappropriate, the Table amount must "exceed the generous ambit within which reasonable disagreement is possible" or "clearly inadequate or excessive". [21] Turning to the case at hand, find the respondent to have an income of $96,300. The petitioner's income is somewhat indeterminate. Due to health reasons she cannot work full time. Her employment income was $1,330 in 1999, $4,050 in 2000, and estimated at $7,200 in 2001. She assumed her earnings in 2002 would average $500 to $600 per month. She receives spousal support from her second spouse of $1,500 per month for January to November of 2002. attribute to her an income of $24,000 for Guideline purposes which is close to the average of her last three years' income (which included spousal support). [22] While Luke worked for two years and lived away from home for most of that time, his earnings were not substantial. At present he has student loan which covers most of his direct education expense. He has modest monthly income from part-time employment while attending school. He also receives $203 per month as living allowance from his student loan. It is assumed he will have full-time employment during summer months. The respondent also relies on the fact he arranged $5,000 student line of credit for which the respondent is the guarantor. am not prepared, in the circumstances, to consider the line of credit as part of Luke's means available to him to meet his needs. The respondent has reasonably substantial income and cannot seek to reduce or avoid child support obligation by guaranteeing loan which Luke will have to repay. [23] Amanda has student loan which should cover most of her direct education expense. She has no part-time income at present while attending school. It is assumed she will receive approximately $200 per month as living allowance from her student loan. It is also assumed she will have employment during the summer. [24] There is no evidence as to the needs of the children with respect to their personal expenses but there is no doubt that university students have an expense in this regard. It must be observed that the Table amount of support for children does not increase with their age. There is no doubt that the needs of university student are significantly different from an elementary school student. It is logical conclusion that Table support is not intended to cover all of university student's personal expenditures. [25] The petitioner's financial statement indicates food and shelter related expenses of $18,000 per annum out of total living expenses, exclusive of source deductions, of approximately $30,000 per annum. [26] I have concluded, based on the criteria set forth in Farden and Zaba, supra, both Luke and Amanda are children of the marriage as contemplated by the Act. They are involved in the reasonable pursuit of post-secondary education and neither is able to withdraw from the charge of their parents. have also concluded that it is not inappropriate to determine the respondent's child support obligation in accordance with s. 3(2)(a). [27] Luke and Amanda are both able to cover most of their direct education expense through student loans. Luke is able to cover his personal expenditures and may have small amount to contribute to his food and shelter and other expenses. Amanda has no means of contributing to her food and shelter and other expenses and has only modest amount to cover personal expenses. [28] The petitioner's direct food and shelter expenses are $18,000 per annum. As noted, the overall household expenditures are greater. When determining the actual cost of raising children played more significant role in determining child support obligation, the Court of Appeal in Wright v. Wright, [1996] S.J. No. 69 observed at paragraphs 48 to 57 that the children's portion of shared expenses had been set by various courts at between one-third and one-half of the expenses incurred. The Court of Appeal in that instance settled upon 40 percent. [29] It is clear that the cost of maintaining the home for Luke and Amanda is not minor expense. Amanda has no ability as present to contribute to this. Luke may have small ability to contribute. The Table amount of support based upon the respondent's income would be $1,153 per month. This amount is not so high as to "exceed the generous ambit within which reasonable disagreement is possible". It is not clearly excessive given the cost of maintaining the home for the children. [30] am satisfied that in the circumstance at hand and the demonstrated ability of the children to obtain reasonably remunerative summertime employment that they are not dependent upon their parents during the summer months and have the ability to contribute adequately to their food, shelter and related expenses when not in attendance at school. [31] There will be an order that the respondent, based upon an income of $96,300, shall pay to the petitioner, for the support of their two children, the sum of $1,153 per month during the months of September to April, inclusive, commencing January 1, 2002, and payable on the first of each month thereafter, pursuant to ss. 3(2)(a) and 3(1)(a) of the Guidelines. [32] The petitioner seeks arrears of child support for July to December, 2001, covering both children. I have determined that in the circumstances at hand it would be appropriate to calculate arrears only for the support of Luke during the months of September to December. Amanda was attending the University of Calgary and all her needs were met. The arrears are fixed at $718 per month X four months, or $2,872. The arrears will be paid by the respondent paying to the petitioner the sum of $718 per month during each of the months of May to August, 2002, inclusive, commencing May 1, 2002, and on the first of each month thereafter. [33] In terms of s. 7 expenses, the respondent's proportionate share is 80 percent. The evidence indicates that Luke and Amanda's student loans cover most if not all of their direct education expense of tuition, books and fees. With respect to any expenses in this regard not covered by student loans, the respondent shall pay his proportionate share of such expense within 30 days of such funds being due. Section 7(3) of the Guidelines requires that any tax deduction or credit relating to covered expense be taken into account. In this instance, the issue is the education tax credit available to the children. Any unused portion can be transferred to parent. This only becomes an issue if the respondent is required to contribute to his children's education expense pursuant to s. 7. If the respondent is required to so contribute and if there is any unused tax credit available to either child, such credit should be transferred to the parents in proportion to their respective incomes. If the parties are unable to work out an adjustment, an application may be made to the court for adjustment. [34] The petitioner shall have her costs of the application fixed in the amount of $750.00.
Both sought to vary the June 30, 1999 child support order under which the father was to pay monthly child support of $987 based on an income of $80,278. He ceased paying when the children did not attend school full-time. The 21 year old worked for several years before returning to his mother's home in August 2001 and commencing full-time studies. He continued to work part-time and obtained student loans and a student line of credit. The daughter resumed living with her mother in January 2002 and was attending university full-time. Both adult children were assuming responsibility for most of their education costs by taking student loans. The mother's position was the father should pay the table amount of support for both children and his proportionate share of post-secondary expenses not covered by student loans. At issue also was payment of arrears for July to December 2001. HELD: 1)The father was to pay $1,153 per month for support for the adult children for the months of September to April inclusive, pursuant to s.3(2)(a) and 3(1)(a) of the Guidelines. Based on the criteria set forth in Farden and Zaba, both children were children of the marriage as contemplated by the Act. They were involved in the reasonable pursuit of post-secondary education and neither was able to withdraw from the charge of their parents. It was appropriate to determine the obligation in accordance with s.3(2)(a). The student loans covered most direct education expenses of tuition, books and fees. The line of credit was not considered a part of the son's means available to meet his needs. The father has a reasonably substantial income ($96,300) and cannot seek to reduce or avoid a child support obligation by guaranteeing a loan, which the child will have to repay. Child support arrears for July to December 2001 for the son to a total of $2,872 were payable at a rate of $718 per month. The daughter's needs were met while attending university in Alberta.  3)While it would appear beyond debate that an adult child must make reasonable efforts to contribute to his or her support and education, it is not so clear how this is to be applied to an individual circumstance. The principles enunciated in Francis were recast in the context of s.3(2). A similar summary, albeit with respect to an application under s.4, is found in Metzner as reiterated in MacDonald. It is clear from Francis that determining inappropriateness is not a matter of the court determining what the budget ought to be and whether a Table amount exceeds that budget. To revert to such an approach is to undermine the presumptive rule and legislated objectives of predictability, consistency and efficiency. 4)The father was to pay his proportionate share (80%) of any expenses not covered within 30 days of such funds being due. If the parties were unable to work out an adjustment for any unused education tax credit, an application may be brought to court. 5)The mother was awarded her costs of the application fixed at $750.