Montalto v. Montalto, 2011 ABQB 574

Court of Queen ’ s Bench of Alberta Citation: Montalto v. Montalto, 2011 ABQB 574 Date: 20110926 Docket: 4803 151524 Registry: Edmonton Between: Michelle Nadine Montalto Applicant - and - Joseph Montalto Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These parties married in April 1991 and separated in December 2008. The child in issue in this matter is currently 19 years of age, and lives with the mother.

Until May of 2011, the father was paying child support in the sum of $775.00 per month based on his annual Guideline Income of just over $61,000.00 a year. This amount of child support being paid had been reduced from the Guideline amount of $887.00 per month by agreement between the parties because the father was also paying the cost of maintaining the children as insured persons under his employer ’ s health insurance plan.

There is a second child of the relationship currently 17 years of age, but there is no dispute with respect to her child support. [ 2 ] The issue surrounds the 19-year old daughter who has completed her first year of post-secondary education as of April 2011 and who entered her second year in September 2011 taking a Bachelor of Arts program. The daughter works part time and her first year marks were such that she was placed on academic probation for year two of her four year program.

[ 3 ] The father initially refused to acknowledge that the daughter was a “ child of the marriage, ” but now simply refuses to pay any child support for the daughter during the summer months between May and September, 2011, and refuses to pay essentially for most, if not all, of the daughter ’ s

Section 7 expenses which consist of tuition and books for both 2010 and 2011. [ 4 ] The father argues that the child was an honours student during her high school years and as such received scholarships to attend post-secondary education, as well as a Bursary. The father also points out that the daughter earned approximately $5,000.00 in part time income in 2010, and to date in 2011 has earned $6,500.00 in part time income.

The father ’ s position is that since the 19-year old daughter has financial resources available to her, she should be expected to make a significant contribution towards her own education. [ 5 ] The mother points out that the child did not have sufficient funds available to pay for all of her post-secondary education expenses for the 2010-2011 academic term, and therefore she has to pay for all of the tuition and books.

During the marriage, the mother deposes that both parents had the expectation that their children would attend post-secondary education and that the parents would provide financial support for them to do so. [ 6 ] The father responds that the mother can do whatever she wishes in terms of providing financial support for the child, given that the mother actually earns approximately $10,000.00 a year more than he does.

However, given the following income or assets of the daughter, he fails to see her financial need: a) $5,033.00 part time income for 2010; b) $6,585.34 part time income to 30 July 2011; c) $1,200.00 scholarship; d) $2,000.00 bursary monies from the Father ’ s employer; e) $1,225.75 G.I.C.; f) $15,000.00 student line of credit, from which she originally took $4,136.37; g) $593.46 in an ATB Generation Account. [ 7 ] The father is also concerned that the child is only enrolled in four courses for the Fall 2011 term.

While the father no longer argues that the 19-year old is not a “ child of the marriage, ” he does point out that the daughter ’ s performance in the 2010-2011 academic year was such that she was placed on academic probation because she failed to maintain a grade point average of at least 2.0. [ 8 ] The father proposes to pay no child support between May and September 2011 for the daughter; no

Section 7 expenses for tuition and books for the academic year 2010/2011; and $500.00 towards her current academic year expenses. Analysis [ 9 ] Section 3(2) of the Divorce Act states: 3(2) Unless otherwise provided under these Guidelines, where a child to whom a 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 to be appropriate, having regard to thecondition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of thechild. [10] The father submits in this case where the daughter has significant part time earnings, scholarship and bursary funds, somefinancial savings and has used a portion of her student line of credit, it would be inappropriate to apply the Guidelines as if she was underthe age of majority because, contrary to most children under the age of majority, she has significant earnings and access to a line ofcredit: Rebenchuk v.

Rebenchuk, 2007 MBCA 22, paras. 28-30. [11] Section 7(1) of the Child Support Guidelines provides that in a child support order the Court may require the parents for achild to contribute to that child’s (

e) expenses for post-secondary education. [12] Section 7(2) of the Child Support Guidelines states: 7(2) The guiding principle in determining the amount of expense referred to in subsection (1) is that the expense is shared by thespouses in proportion to their respective incomes after deducting from expenses, the contribution, if any, from the child. (underliningadded) [13] The father submits that the Guidelines presuppose that an adult child should contribute to their post-secondary educationexpenses. [14] The father further submits that an adult child is expected to contribute to their post-secondary expenses through scholarships,bursaries, student loans and part time employment: Wahl v.

Wahl, 2000 ABCB 10, paras. 40 and 43. [15] The cost of the daughter’s 2010-2011 post-secondary tuition and books was $6,235.90. The father submits that the daughterhas more than enough income and assets to pay for the cost of her post-secondary education and

Section 7 expenses: Glen v. Glen, (B.C.S.C.), paras. 19-22. [16] However, it is well-settled law that a child over the age of eighteen years who attends a post-secondary education programfull-time, may qualify as a "child" within the meaning of the Divorce Act. The issue is not the child's age but the child's ability to be financially independent based on what is reasonable in thecircumstances. Each case must be considered on its own facts. [17] The daughter is not able to be financially independent while she is attending post-secondary schooling.

Her income from herpart time employment is not sufficient for her to be able to meet her living expenses or her extra expenses for her post-secondaryeducation such as her tuition and books. Her income has not been high enough from her part time employment and past earnings to disqualify her as a childof the marriage. Even in situations where a student's income is higher, the adult child has still been held to be a child of the marriage. [18] As discussed by Justice Butler in Collins v.

Collins 2010 NLTD(F) 15, following the Federal Child Support Guidelines isstill appropriate for child support for the daughter because she still lives with the mother and attends post-secondary education on afull-time basis. According to the analysis in Wesemann v. Wesemann, (BC SC), [1999] B.C.J. No. 1387 (B.C. S.C.),which was commented on by Julien D. Payne & Marilyn A. Payne, Child Support Guidelines in Canada, (2009) (Toronto: Irwin Law,

2009) at pages 99 - 103, the closer a child's circumstances are to that on which the Federal Child Support Guidelines are based, the moreappropriate it is to follow the guideline approach. [19] The Manitoba Court of Appeal agreed with this approach in Rebenchuk v. Rebenchuk. (2007), MBCA 22 when Scott C.J.M.at paragraph 30 stated that it was sensible for the Guideline approach to be applied in circumstances where the situation of an adult childwas similar to that of a minor child, namely living with a parent, not earning an income, and thus being dependent upon the parent.

Thedaughter's circumstances as stated are very close to that upon which the usual Guideline approach is based. [20] The daughter also remained a child of the marriage during the summer months because she did not earn a high enough income to pay for her own living expenses. As noted by my colleague Justice Graesser in B.(S.

I) v. B.(M.D.) (2009), ABQB 612, whether or not child support is payable over the summer months depends on where the child is residing,what the child is earning, the child's summer work and activities, and whether the child's income over the summer should be taken intoaccount in terms of the budget for the overall school year. In that case, the children were considered children of the marriage becausethey did not earn enough over the summer months to pay their living expenses, including rent for their accommodations. [21] The Saskatchewan Court of Appeal in Bradley v. Zaba (1996), (SK CA), 137 Sask. R. 295 (Sask.

C.A.),in considering whether a nineteen year old who was attending university full time was a child of the marriage, stated that among otherfactors, two important considerations were what the parental plans were for the child's education, particularly those made during themarriage, and whether the child could have reasonably expected one or both of the parents to have continued to furnish support if themarriage had not broken down. [22] If the separation of the parties had not happened, the daughter could have reasonably expected that her parents would provideher support for her post-secondary education.

The parties had made plans for her to continue her education beyond completing highschool when they were still together, and discussed this with the children. [23] The guiding principle is always what is in the child's best interests and attending post-secondary education is generally in thechild's best interests. The daughter’s present part time employment in the retail field does not provide her with the best possible futureand career.

In deciding that the parents should contribute to the post-secondary education of a child who had worked part time during theprevious year and earned a substantial income, Justice Pierce in Cava v. Cava (ON SC), 2005 Carswell Ont 2287stated that: It is in the child's best interests that he achieves a level of education that permits him to be self-supporting, engaged in work that ismeaningful to him, and of benefit to the community. [24] Johnson J.A. in C. v. C., (1970), (AB CA), 14 D.L.R (3d) 477 (Alta. CA.), when referring with approval tothe decision of Laskin J.A.[as he then was] in Tapson v.

Tapson, (ON CA), [1970] 1 O.R 521, agreed that the words"other cause" in the definition of a child of the marriage in the Divorce Act should be interpreted broadly to mean that a child who isattending post-secondary education on a full time basis is unable to withdraw himself from the charge of his parents and provide himselfwith the necessities of life.

He stated that: When a child that is capable of further benefit from an education or other special training which will fit her for an occupation in lateryears, such an education or course of training should be looked upon as in the nature of a necessary of life. [25] Since attending post-secondary education is generally in the child's best interests, the father has an obligation to contribute tochild support and post-secondary education expenses while the daughter is attending post-secondary education. Moshansky J. echoedthis sentiment in his decision in Dupuis v. Dupuis

(2003) ABQB 232, when he stated that the Defendant father had to pay retroactivechild support and his proportionate share of his children's post-secondary education expenses for tuition and books because, in theCourt's view, the Defendant had an obligation to contribute to the cost of further education for his children if it is in their best interests. [26] The daughter's poor academic performance in her first year at post-secondary schooling should not bar her from further

support from the father and may be related to her part time work. Graduating from post-secondary education is still a realistic goal forher. She demonstrated that she was capable of achieving high academic standing in high school. Returning to post-secondary educationfor her second year is reasonable under the circumstances and in her best interests. Her post-secondary school would not allow her tocontinue her studies if they did not believe she was capable of improving her performance. Neither the case law nor the Divorce Actspecifies an academic achievement level where support automatically terminates.

Each case must be considered on its own facts. Theguiding principle is reasonableness: (Lee v. Lee 2009 NSSC 121, referring to Ivany v. Ivany (1996), (NL SC), 24R.F.L. (4th) 289 (Nfld. T.D.). [27] Even though adult children can be expected to make a reasonable contribution to their post-secondary education expenses, theamount of contribution varies greatly with the circumstances. As noted by my colleague Langston J. in L.B. v. P.A.V.

(2008) ABQB 623,where the child has the means, the child must make a reasonable and meaningful contribution. However, what is 'reasonable andmeaningful' is not to be considered in isolation from the parents' means and needs. There must be a balancing between the lifestyle of thechild and each of the parents, ensuring there is an equal burden on each of the three relative to their personal situations. The daughterdoes not have the means and is not in a position to make a significant contribution to her post-secondary education expenses and livingexpenses while she is attending post-secondary schooling in 2011.

Her part time income is not sufficient to pay her line of credit and topay her tuition and books. She should not be expected to take a large student loan which will affect her in a negative way later in her lifewhen her parents have the means to pay. [28] As stated by Pierce J. in Cava v.

Cava (supra) in his discussion of whether the child should be expected to work during theschool year so that his parents would not have to contribute as much to the child's post-secondary education, it would be unfair to ask thechild to risk his success at university, something that would influence the rest of his life because his parents were reluctant to assist him.He added that it would also be unfair to expect the child to leave university with a large debt load when his family had the means toassist him. This was affirmed by Langston J. in L.B. v.

P.A.V. when he stated that if a child works hard over the summer or the school year and is able to save money, ... that the child must be able to enjoy some benefitfrom the fruits of their labour. [29] Based on his guideline income and assets, the father does have the means to pay his proportionate share of the daughter'sSection 7 expenses including the expenses for her post-secondary education which amount to $1,418.68 in 2010 and to $1,056.00 in2011.

Conclusion [30] A review of the case law suggests that the issues of whether child support for children over the age of majority who areattending post-secondary education is payable and in what amounts depends upon the facts of each individual case. As stated by Scott C.J. M. in Rebenchuk v.

Rebenchuk, 2007 MBCA 22: As these reasons hopefully demonstrate, it is neither desirable nor possible to set forth "bright line" rules that enable judges to determinewith mathematical certainty questions of entitlement and amount for the support of adult children pursuing post-secondary education.This is because of the fact-driven basis upon which all such decisions are made. While the Guidelines, following their introduction in1997, have helpfully provided more certainty, there is still an essential element of judicial discretion required.

This, in my opinion, is asit should be. [31] The father's guideline income is $61,436.78. He has the means and ability to pay ongoing child maintenance through the summer months, and pay

Section 7 expenses for the daughter. [32] His proportionate share for the 2010-2011 academic term, would be $1,418.68, calculated as follows:

1. 2010 - 2011 post-secondary education year- total cost of $6,235.90 2. Less $3,200.00 from Victoria's scholarship and bursary = $3,035.90. 3. Each parent's proportionate share:

a) Mother = 53.27% x $3,035.90 = $1,617.22

b) Father = 46.73% x $3,035.90 = $1,418.68. [33] The father’s proportionate share for the academic year 2011-2012 would be $1,056.57: Total Fees for 2011-2012 fall term (excluding books): $2,261.00 Each parent’s proportionate share: Mother’s share is 53.27% x $2,261.00 = $1,204.43 Father’s share is 46.73% x $2,261.00 = $1,056.57 [34] The daughter would benefit from the financial, emotional, and psychological support of both of her parents. This would helpher to focus on her studies and achieve higher grades.

Her plan to complete a Bachelor of Arts degree and then to pursue a career in social work is reasonable and she has the ability to succeed.Her overall expenses are relatively modest. Her situation is similar to that in Geran v. Geran 2008 SKQB 460 where the child in thatcase, had worked part-time during university and took a year off after receiving very poor grades. In deciding that adult child was still achild of the marriage and in need of support, McIntyre J. recognized that she either had to work less or take fewer courses in order tosucceed at her studies.

He stated that it was still reasonable for her to pursue a university degree even though she had performed poorlyduring one academic term, and that she was not in a position to support herself because of this. [35] The daughter in this case does contribute to her post-secondary education expenses through bursaries, scholarships, and herpart-time employment, but she does not have sufficient resources to pay the entire cost. She uses her income from her part timeemployment to pay her personal expenses. She should be able to experience some personal benefit from her work. As stated by Justice Quijano in Glen v.

Glen, (BC SC) in her reasons for judgment at paragraph 14: I am of the view that the fact that a child is earning income is a factor to be considered in relation to the question as to whether it wouldbe inappropriate to apply the provisions of s. 3(2)(a), but it is not determinative of the question. In other words, the fact that a child isearning an income does not lead inexorably to the conclusion that all of the income must be applied to a reduction of the enumeratedexpenses related to the child.

It is also necessary to consider the desirability of allowing the child to experience some personal benefitfrom the fruits of his or her labours. [36] In this case, the daughter's situation is distinguishable from that of the child in Glen v. Glen cited by the father because herincome is relatively much lower, especially when compared to her university expenses. In Glen v. Glen that adult child's income wasapproximately $6,800.00 and her post-secondary education expenses were $3,800.00, keeping in mind that this case was decided in1997.

In this case, the daughter’s total income according to her 2010 Notice of Assessment was $5,033.00 and her post-secondaryexpenses for just her tuition and books were $6,235.90. The line of credit that the daughter has also cannot be considered income or anasset that she has available to her as she does not have sufficient income to pay the interest or the balance due for this. The mother had tocover this expense on her behalf.

[ 37 ] Justice Graesser in B.(S.I.) v. B.(M.D.) 2009 ABQB 612 , in deciding that child support was payable for the two children of the marriage for the entire year, including the school breaks, stated that the answer to the question of whether child support is payable during school breaks for post-secondary students, at paragraph 35: ...depends on a careful analysis of the children's circumstances. The residential parent's costs remain roughly the same, whether the children are in school or not.

So long as the children are working and contributing to the costs of their education in a reasonable manner, it makes little sense to have the children pay rent for the summer months, if that will cause them to run short over the school term, and require greater s.7 contributions for the rest of the year. And at paragraph 45: B. (L.) v. V.(P.A.) is not authority for any automatic rule that child support need not be payable during the summer holiday months.

That will depend on where the child is residing, what the child is earning, the child's summer work and activities, and whether the child's income over the summer should be taken into account in terms of the budget for the overall school year. [ 38 ] In that case, Graesser J. also noted that the children's incomes were not high enough to suggest that they should be paying rent to the parent they were living with for any part of the year and that there was no basis to discontinue child support payable for the summer months.

The Plaintiff parent still had to pay to maintain a room for the children in her residence and cover some of their expenses. The daughter here also does not have sufficient income during the summer months or at any other time of the year to cover her own living expenses and to save for her post-secondary expenses. She lives with the mother during the summer months. [ 39 ] I award costs to the mother given her success in this application. Heard on the 21 st day of September, 2011. Dated at the City of Edmonton, Alberta this 23 rd day of September, 2011. Donald Lee J.C.Q.B.A. Appearances: William J.

Shymko Law Office for the Applicant mother Russell R. Wilkinson, Main Street Law Offices for the Respondent father