QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 12 Date: 2011 01 12 Docket: DIV. 400/1998 Judicial Centre: Regina, Family Law Division BETWEEN: SHERRI NYGREN and BLAINE JOHNSON Counsel: Jeffrey W. Deagle for Sherri Nygren Blaine Johnson appearing for himself JUDGMENT GUNN, J. January 12, 2011 [1] Amanda Nygren, born May 29, 1989 is the daughter of Sherri Nygren and Blaine Johnson. [2] This application deals with an application by Ms. Nygren for payment by Mr. Johnson of his pro rata share of the costs for Amanda’s post-secondary education expenses. PROCEDURAL HISTORY [3] June 20, 2008 Justice D.L. Wilson made series of orders in relation to the parties’ children. The relevant portion of the order in relation to Amanda is the following: 1.(b) The child, Amanda Nygren, born May 29, 1989, ceased to be child within the meaning of the Divorce Act commencing and including July 1, 2007. There shall be no child support payable with respect to this child commencing and including July 1, 2007. 4. The Petitioner’s application for support for Amanda Nygren in the event she attends post-secondary education is adjourned sine die returnable on 14 days notice to the Respondent, with the Petitioner filing all the necessary documentation regarding Amanda’s post-secondary education expenses. [4] In September of 2009 Ms. Nygren brought an application to vary paragraph 1(b) of the order of Wilson, J. She sought an order that Amanda Nygren (born May 29, 1989) was still child within the meaning of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and an order requiring ongoing and retroactive payments by Mr. Johnson for some of Amanda Nygren’s extraordinary expenses for post-secondary education. [5] Justice Pritchard dealt with this application in October of 2009. Her order provides as follows: 1. The Petitioner’s application for child support for the university year of 2009/2010 has been abandoned. 2. The application for child support for 2008/2009 for university expenses is adjourned sine die returnable on 21 days’ notice, along with updated additional materials. 3. The parties are directed in the interim to attempt to settle the sharing of educational expenses the daughter has incurred in 2008/2009, in accordance with the decision of Madam Justice Wilson which clearly establishes an obligation on the father if Amanda did proceed with her plans as articulated in June, 2008 but not confirmed. To assist in the negotiations, the Court advises that the amount claimed as Amanda’s expenses for her year at school are excessive and do not bear proper relationship to her parents’ ability to pay. To express the Court’s displeasure with the mother’s application for child support for Amanda’s proposed program in 2009/2010 and her failure to disclosure[sic] that the program was part-time/evening, the Court awards costs of $1,000.00 payable by the Petitioner to the Respondent, Blaine Johnson, notwithstanding the abandonment of the claim by the mother, the Petitioner Sherri Nygren. [6] The parties were unable to settle the sharing of Amanda’s educational expenses for 2008/2009. Ms. Nygren’s application was returned to the chambers list in November of 2010 and adjourned to be argued in December of 2010. 1. Costs ordered by Pritchard, J. 2. Was Amanda Nygren child within the meaning of the Divorce Act while attending Confederation College in 2008-2009? If so, on what basis should support be provided by Mr. Johnson? Re: 1. Costs ordered by Pritchard, J. [7] Ms. Nygren did not pay the $1,000.00 costs to Mr. Johnson as ordered by Justice Pritchard. Instead, Ms. Nygren deposes she applied $1,000.00 directly to Amanda’s credit card balance. There is no evidence this was done with the agreement of Mr. Johnson. [8] Mr. Johnson seeks payment of his costs as ordered by the court. The fact that Mr. Johnson proposes to use those monies to assist Amanda, does not permit Ms. Nygren to bypass Mr. Johnson in the process. The costs are owing and shall be paid forthwith by Ms. Nygren to Mr. Johnson in accordance with the order of Pritchard, J. Re: 2. Was Amanda Nygren child within the meaning of the Divorce Act while attending Confederation College in 2008-2009? If so, on what basis should support be provided by Mr. Johnson? A. The Legislation [9] The provisions of the Divorce Act which have relevance to this application are as follows: 2.(1) In this Act, ... “child of the marriage” means child of two spouses or former spouses who, at the material time, ... (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. [10] Section of the Federal Child Support Guidelines (SOR/97-175, as am) (the “Guidelines”) is also relevant: (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. (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 interests 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: ... (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [11] Amanda attended the Educational Assistant Program offered at Confederation College in Thunder Bay, Ontario. Neither of the parties live in Thunder Bay so Amanda was living on her own. Ms. Nygren and Amanda depose that Amanda’s expenses for this year were in excess of $26,000.00. note that the spreadsheet setting out these expenses is titled “2008-2009 1st year of college”. The spreadsheet reflects expenses commencing August of 2008 and ending July of 2009. However the information on the duration of Amanda’s course of study would indicate that it was from September 1, 2008 to May 1, 2009. The expenses listed for the months not covered in the term of study are the following: August $2,781.25 May $1,608.49 June $1,464.70 July $1,591.93 Total: $7,446.37 [12] There are some expenses listed which bear highlighting. These expenses exclude the months of August, May, June and July discussed supra. Entertainment and Fitness $1,030.00 Cigarettes 66.19 Credit Card interest 155.88 Flight to Regina 344.75 Credit Card Insurance 76.43 Christmas gifts 150.00 Meals out 330.10 Total: $2,153.35 [13] Amanda deposes that her school expenses were paid from the following sources of income: Loan for $10,000 (co-signed by Ms. Nygren) Student loan $5,430.00 Amanda credit card debt $1,300.00 Money from Ms. Nygren $4,452.08 Amanda Employment income $3,067.65 Miscellaneous $1,426.70 [14] Amanda’s tax returns reflect the following income: 2007: $9,942.28 2008: $8,684.27 [15] Amanda did not do well in this program. Her transcript of marks was provided in response to Notice to Disclose. In the fall semester she took six classes with 48 credit hours for each. Her marks were 62, 66, 68, 68, 72 and 84. In the winter term she took six classes each with 48 credit hours. Her marks were 7, 26, 38, 43, 45 and 77. She passed only one class in this second semester. Amanda provided no explanation for her poor performance. [16] In Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.), 18 R.F.L. (4th) 1, 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. The factors set out in Zaba 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 be expected assistance if the marriage had not broken down? [17] 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. [18] The burden is on the applicant to prove the adult child’s ongoing economic dependence. (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.), [1989] O.J. No. 1002 (QL); Law v. Law (1986), R.F.L. (3d) 458 (Ont. S.C.), [1986] O.J. No. 2513 (QL)). [19] In Hagen v. Rankin 2002 SKCA 13 (CanLII), 213 Sask. R. 257, the father was ordered to pay $605.00 per month, being the table amount on his income of $79,300.00 for his 18 year old son Landon who was attending university and living with his mother. The chamber judge declined to look beyond the provisions of clause 3(2)(a) notwithstanding the fact that Landon was earning significant amount of income. Landon earned in excess of $9,000.00 in 2000 and was expected to earn $11,000.00 in 2001. Deducting his expenses for tuition and books from this income and his post-secondary educational fund gave him between $7,000.00 and $9,000.00 on which to live. His father had also offered him an additional $200.00 per month, thinking Landon would apply this to his room and board. [20] Cameron, J.A. held that the presumption of clause 3(1)(a), which is engaged by clause 3(2)(a), is rebuttable, having regard for the actual needs of the children and respective means of the parents. Justice Cameron went on to hold that the chambers judge should have determined the amount of support payable by the father in accordance with the provisions of clause 3(2)(b) by having regard to the actual means and needs of Landon and the financial ability of each parent to contribute to his support. He ordered the father to pay the equivalent of one third of the table amount based on his income. He further determined that if the mother paid one third of the table amount based on her income, Landon would have sufficient income in light of his own financial resources. [21] It would appear from the applicant’s materials that Amanda is responsible for two loans. These would include the $10,000.00 loan co-signed by Ms. Nygren and Amanda’s student loan of $5,430.00. [22] Justice Smith in Beutler v. Maki 2005 SKQB 393 (CanLII), 273 Sask. R. 198 (QB) at para. 40 commented on this issue as follows: [40] If the case law is unsettled about requiring an adult child to obtain loan, would respectfully argue that it should not be. It is incumbent upon an adult child in university to contribute to the cost of securing his or her education. Whether that contribution is by way of earned income or earned income plus student loan, is function of the circumstances of each family and the expenses being faced. Analysis [23] I am satisfied that Amanda was a child within the meaning of the Divorce Act during the time she was attending classes. However what support she might anticipate receiving from Mr. Johnson during that time is more problematic. [24] Justice Pritchard has already indicated that she considers the expenses claimed by Amanda to be excessive. I agree with that conclusion. Approximately $7,500.00 is being claimed for months Amanda was not even in classes according to the material filed. In addition, there is at least another $2,100.00 of questionable expenses. That would take her more reasonable expenses to about $16,400.00. [25] Her poor academic performance is troublesome. The big concern is that Amanda has not explained it. Without evidence from her on this point it would seem that she was capable of passing her first semester, albeit with not very stellar marks. Mr. Johnson made it clear as early as October of 2009 that her poor performance was an issue for him. He deposed to the following in relation to the 2008-2009 school year: ... have not received requested disclosure of Amanda’s performance in 2008-2009 and other material set out in Notice to Disclose served September 10, 2009. However, Amanda herself advised me that she did not attend many of her classes, and that she did not pass or finish most of her courses in 2008-2009 at Confederation College (as detailed in paragraphs 12 to 14). 4. question Amanda’s choice of studies in both 2008 and 2009. In 2008, Sherri indicates that Amanda attended Confederation College in Thunder Bay, Ontario in the Educational Assistant Program first Early Childhood Learning. Attached as Exhibit “A” is print out regarding that course. However, from what Amanda advised me, she did not complete most of the classes (either dropped out or failed the courses). ... My understanding of her previous schooling at Confederation College was that is[sic] was “distance learning” meaning she did not have to attend the courses in person. She attended occasionally by video conference. question as result her needing to have an apartment close to the college as well as her indication of $90.00 for cab fare. would like the issue considered as to whether her attendance is considered to be full time or even part time given the number of classes that Amanda evidently passed in 2008-2009 as well as the fact that she chose to live close to the college when she did not need to be. 13. Amanda verbally advised that she received total of 10 credits (out of 43 or 44) for 2008-2009 school year. have never seen Amanda’s transcript of marks. [26] Yet in the face of these concerns being raised by Mr. Johnson, Amanda has given me no evidence to rebut Mr. Johnson’s information that she did not attend many of her classes. In my view Amanda must take greater responsibility for her own expenses and debts if she did not apply herself to her studies. [27] Given the issues discussed supra, it is my view that Mr. Johnson should not be ordered to pay the table amount. It is my view that an application of the provisions of clause 3(2)(b) having regard to the actual means and needs of Amanda and the financial ability of each parent to contribute to her support be considered. [28] Ms. Nygren’s total annual income for 2008 was $36,518.00. Mr. Johnson’s tax return for 2008 reflects total income of $66,869.00. [29] The bigger question is what Amanda’s needs should be found to be. Amanda earned $18,626.55 in 2007 and 2008 collectively. Yet she deposes that only $3,067.65 was used for payment of her expenses. She is responsible for some significant loans, but in my view she has responsibility to fund her own education, particularly when it appears she did not apply herself to achieving some success. [30] In all of the circumstances, it is my view that Mr. Johnson should match the amount paid by Ms. Nygren towards Amanda’s expenses. Ms. Nygren deposes she was fully supportive of Amanda’s choices throughout. Mr. Johnson deposes he was not. He shall pay the sum of $4,452.00 in full and complete satisfaction of any claim for retroactive child support for 2008-2009. [31] Given my earlier ruling with respect to costs, Mr. Johnson shall pay the sum of $3,452.00 on or before February 15, 2011. These monies may be applied by Mr. Johnson directly to Amanda’s outstanding debts.
The petitioner brought an application to compel the respondent to pay his pro rata share of the costs for the child's post-secondary education expenses. The petitioner had previously been ordered to pay $1,000 in costs to the respondent but instead paid the $1,000 directly into the child's credit card balance and there was no evidence that this was done by mutual agreement between the parties. The child was not performing well in her program with no explanation for her poor performance. HELD The burden is on the petitioner to prove the adult child's ongoing economic dependence. Although the child is a child within the meaning of the Divorce Act during the time she was attending classes, her expenses are excessive. The child provided no evidence to rebut the respondent's information that she did not attend many of her classes. The child must take greater responsibility for her own expenses and debts if she does not apply herself to her studies. The respondent was ordered to match the amount paid by the petitioner towards the child's expenses. The costs owed by the petitioner to the respondent are set-off against the amount owing; the respondent shall pay $3,452 to the child's outstanding debts by or before February 15, 2011.