MacEachern v. MacLeod, 2014 NSSC 238

SUPREME COURT OF Nova Scotia Citation: MacEachern v. MacLeod , 2014 NSSC 238 Date: 20140707 Docket: 1205-002640 (SPD-049967) Registry: Pictou Between: Brian MacEachern Applicant v. Heather MacLeod Respondent Judge: The Honourable Justice Denise M.

Boudreau Heard: March 31, 2014, in Truro, Nova Scotia Final Written Submissions: May 30, 2014 Counsel: Dianne Paquet, for the Applicant Lloyd Berliner, for the Respondent By the Court: [ 1 ] This is an application made by Brian MacEachern to vary an order of Justice Scaravelli issued on March 7, 2011, in relation to child maintenance. [ 2 ] The parties are the parents of two children, Craig Blain MacEachern (born May 5, 1993), and Haley Heather MacEachern (born June 13, 1995).

The Order of March 2011 provided for the parties to have joint custody of the children, with primary care to the respondent Heather MacLeod. The Order also provided many paragraphs in respect of information flow between the parties with respect to the children. For the purposes of child support, the income of the applicant was determined to be approximately $101,600 per year; the income of the respondent was determined to be approximately $69,900 per year.

The order provided for a payment of child support for the two children by the applicant in the amount of $1,364 per month. [ 3 ] In relation to s. 7 expenses, the parties were ordered to contribute to extra-curricular activities in proportionate amounts (the respondent at 40.78%, the applicant at 59.22%). [ 4 ] At the time of this hearing, the Court was advised that the applicant voluntarily paid additional monthly maintenance over the past number of years, to the table amount, corresponding with any income increases that he has experienced. [ 5 ] The application to vary, filed by the applicant on November 13, 2013, sought the following: The applicant is applying to the court for an order to vary the Consent Variation Order issued March 9, 2011, attached hereto together

with a copy of the Corollary Relief Judgement issued March 21, 2007, and he relies on s. 17 of the Divorce Act , as amended, to say that circumstances have changed since the Order was granted as the children of the marriage are enrolled in university and in accordance with the Federal Child Support Guidelines it is in the best interests of the children to vary the quantum, the method of payment and to pay support directly to the children of the marriage or directly to a post-secondary institution. [ 6 ] The parties are both employed.

The applicant is a powerline technician with Nova Scotia Power and his present annual income for our purposes is $90,679.92. The respondent is employed as a nurse and her present annual income for our purposes is $73,179.96. Circumstances of each child [ 7 ] The parties have been fortunate to have children who are academic achievers. The older child, Craig, has recently turned 21 years of age; he is completing his third year of full-time studies in a Bachelor of Technology in Applied Science program, at Dalhousie University’s Faculty of Agriculture in Truro. Craig has one more year of study in this program.

He continues to reside with his mother, the respondent, throughout the year. [ 8 ] According to the Statement of Special Expenses filed by the respondent, Craig’s tuition has increased every year that he has been enrolled in this program. His tuition in 2011-2012 was $5,193; in 2012-2013 was $5,359; and in 2013-2014 was $6,558. One would assume it will increase again this year. One must also factor in the costs of his books and supplies, plus the expenses associated with his room and board.

The parties appear to have agreed, and it appears reasonable that Craig’s expenses are in the range of $10,000 per year. [ 9 ] In terms of resources available, the evidence showed that Craig has been diligently supporting himself and contributing towards the cost of his education. Craig works during the summer and during the school year. His 2013 Notice of Assessment shows total income of $8,509. Craig has also received student loans for the past three years, as well as bursaries and/or entrance scholarships.

The evidence before me shows the following such revenue for Craig: 2011/2012 $9,149 loan $1,500 scholarship 2012/2013 $4,264 loan 2013/2014 $5,509 loan $1,283 bursary [ 10 ] The order issued in 2011 also provided that Canada Savings Bonds be liquidated and placed in the children’s savings account. This was done. The starting balance in Craig’s savings account when he began university was $5,749.21. He has used it over the course of these years to make up certain shortfalls. The current balance is $2,366.76. [ 11 ] The younger child, Haley, has now reached 19 years of age (as of June 13, 2014).

Haley commenced a nursing degree at St. Francis Xavier University in Antigonish in September 2013. This is a four-year program and Haley resides on campus. Consequently, Haley’s direct education costs are greater that Craig’s. Her tuition for 2013-2014 was $7,431. Her residence fees and meal plan totalled nearly $12,000. Her books and miscellaneous supplies totalled nearly $3,500. Some of those miscellaneous costs will not be repeated, however, as they include (for example) a laptop, a nursing kit, and frosh kit, which will not need to be re-purchased.

It appears reasonable that Haley’s school years will each cost approximately $24,000. [ 12 ] Haley intends to return to her mother’s home in Truro during the summers. She also returns to her mother’s home during certain weekends and holidays during the school year. [ 13 ] Haley has also materially contributed towards her education. She worked during the summer prior to university. Her 2013 Notice of Assessment shows total income of $2,358. Haley also received a student loan this year for $13,394.

She was also fortunate to receive a NS student bursary of approximately $1,300, as well as an entrance scholarship of $1,500. In relation to the Canada Savings Bonds account for Haley, the starting balance in her account was $3,219.66. The current balance is $24.53. [ 14 ] The applicant submits that, given the present circumstances of the children, his child support payment should be varied, and should no longer be in accordance with

Schedule 1 of the Federal Child Support Guidelines. The applicant further seeks to be permitted to pay maintenance directly to the children, rather than to the respondent. [ 15 ] I must be satisfied, prior to varying any order, that there has been a change of circumstances as required by subsection 17(4) of the Divorce Act R.S.C. 1985. [ 16 ] This has been established. Both children are now enrolled in post-secondary education and have reached the age of majority. I also note that the income of the applicant has changed. I am satisfied that these changes are sufficiently significant to allow me to

consider an application to vary the 2011 order. [17] The Court is being asked to make three decisions in this case: 1. What amount of child support, if any, should be payable for each of these children, either the Guideline amount, anotheramount, or none at all? 2. What contribution, if any, must be made by each parent to meet

section 7 (educational) expenses for each child, and howthat is to be done. 3. Whether the children should be paid directly. [18]

Section 3 of the Federal Child Support Guidelines establishes the amount of maintenance to be paid for children: 3.

(1) Unless otherwise provided under these Guidelines, the amount of a 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 which the order relatesand 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 a child to whom a child support order relates is the age of majority or over,the amount of the child support 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. [19] The presumptive calculation for child support is contained in subsection 3(1)(a). Child support is to be set at the dollar amountprovided for in the applicable table, based on the number of children and the income of the payor spouse.

However, where a child isover the age of majority, subsection 3(2) provides a method by which the Court can adjust the table amounts in appropriatecircumstances. [20] Pursuant to para. 3(2)(a), if Craig and Haley were both under the age of majority, based on the applicant’s 2013 income of$90,679, support for two children at the table amount would be set at $1,236.

That remains the starting point of any calculation formaintenance, so long as the child remains dependent. [21] Moving then to para. 3(2)(b), I must next consider whether that approach is inappropriate, having regard to the condition,means, needs and other circumstances of the child, and the court must consider the financial ability of each spouse to contribute to thesupport of the child. [22] I start with the comments of the Manitoba Court of Appeal in relation to awards of support for adult children, in Rebenchuk v.Rebenchuk 2007 MBCA 22, at para. 30: The best approach, it seems to me, and one now widely used is summarized by James C.

MacDonald, Q.C. and Ann C. Wilton, Child Support Guidelines: Law and Practice, 2nd ed., vol. 1 (Toronto: Carswell, 2004) (at pp. 3-11, 3-12): … The usual Guidelines approach is based on factors that normally apply to a child under the age of majority; that is the child resideswith one or both parents, is not earning an income and is dependent on his or her parents.

It is also based on the understanding that,though only the income of the person paying is used to calculate the amount payable, the other parent makes a significant contribution tothe costs of that child’s care because the child is residing with him or her. The closer the circumstances of the child are to those uponwhich the usual Guidelines approach is based, the less likely it is that the usual Guidelines calculation will be inappropriate. Theopposite is also true. Children over the age of majority may reside away from home and earn a significant income.

If a child is notresiding at home, the nature of the contribution towards the child’s expenses may be quite different. … [emphasis added] [23] This general principle has enjoyed much judicial support. It is generally accepted that the closer a child’s circumstances are toGuidelines circumstances, the more likely the Guidelines will be applied (See also Wesemann [1999] B.C.J. No. 387).

In Francis v.Baker (SCC), [1999] 3 S.C.R. 250, a case cited by both parties, Justice Bastarache notes explicitly that the tableamount is the presumptive amount, and its appropriateness is to be considered first: “Custodial parents are entitled to the table amountunless that amount is shown to be inappropriate.” (at para. 48) [24] As I have noted, the children have been seeking and receiving student loans and bursaries to assist in the financing of their post-secondary education.

Earlier in this proceeding, the applicant expressed concern about his children’s student loans and wished the courtto consider his objections. The parties appeared before Justice Coady of this Court in December 2013, seeking directions and/or advancerulings as to a number of issues; Justice Coady ruled that the court would not be interfering with the student loans issues and that thechildren were entitled, if they wished, to seek student loans. [25] The evidence before me, was that the children intend to continue seeking student loans. I shall therefore factor that into myconclusions.

[ 26 ] I also quote s. 7 of the Guidelines, defined/calculated as: Special or extraordinary expenses 7.

(1) In a 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: . . . . . (

e) expenses for post-secondary education; and . . . . . Sharing of expense

(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. Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Craig / child support [ 27 ] In relation to the child Craig, I agree that the case of Hubley v. Tanner 2012 NSSC 338 , is a close parallel to the case at bar. In that case, the child in question was living at home and attending university on a fulltime basis.

Her post-secondary expenses were fully funded by scholarships, savings and student loans. Justice Legers-Sers rejected the father’s position that he discontinue table amount of support. The payor father was ordered to continue paying the Guideline amount for the student as long as she continued to reside in her mother’s home. [ 28 ] In my view, Craig’s circumstances are quite similar to those of an underage dependent child. While it might be said that his loans and savings do cover the majority of his direct education costs, the costs of his living expenses are borne by his mother, the respondent.

I find that in relation to Craig, the Guideline amount is not inappropriate. I therefore order that child support be paid for Craig at the normal Guideline amount, as per section 3(1)(a). Craig / s. 7 / Extraordinary Expenses [ 29 ] There remains the question of Craig’s extraordinary expenses, i.e. university costs. As a first point, both parties appear to agree that the university expenses are subject to a deduction for the tax credit amount (as was commented upon in Gillis v. Gillis 2013 NSSC 251 ).

It is difficult to find an exact amount of deduction since tuition and supplies cost will fluctuate; however, I agree that in both children’s cases, their deduction will be in the range of $2,000 per year. [ 30 ] As I have already advised, Craig’s costs are estimated at approximately $10,000 per year; reducing this for tax credits provides a cost of $8,000 per year. This amount, it must be noted, includes an estimated (and very modest) amount for his room and board. [ 31 ] Children are to materially contribute towards their own educations.

In this case, both children have voluntarily sought student loans; in my view, that is a demonstration of responsibility towards their education, and constitutes their contribution in this case. I therefore deem Craig’s contribution to his education, for the purposes of this calculation, to be in the amount of $6,500. [ 32 ] I have already made an order for child support in relation to Craig. This payment is meant, among other things, as a contribution to food and housing, which costs are included in the s. 7 needs as well. It would clearly be inappropriate to order those costs to be paid twice.

I also note that, with the amounts already being contributed by Craig, his mother and father (by way of room and board), I see no shortfall in his financial needs for university. I therefore make no additional order for payment of s. 7 expenses (university costs) for Craig.

Haley [ 33 ] Haley is attending university away from home. A review of the caselaw shows that courts have shown creativity in dealing with such situations. [ 34 ] In Gillis (supra), the Court dealt with an application for child support for a 20 year old child, who was away from home attending university. The child returned home to his mother’s for weekends and school breaks. The Court concluded that the child’s circumstances were sufficiently different from those of a Guidelines situation to make the approach in 3(2)(

a) inappropriate. She then turned to an assessment of the factors in 3(2)(b), the “condition, means, needs and other circumstances” of the child. [ 35 ] The Court noted that if the child had been under the age of majority, the Guideline payment for the payor father would have been $784. Further, the s. 7 yearly contribution to university costs by the payor father, based on all of the relevant factors, was determined to be $8,695.38. This would have resulted in a total monthly child support payment of $1,508.62.

The Court then concluded that, given the circumstances, an order for child support of $1,200 would be made. It was held that such an award allowed the child’s needs to be met, while also contributing to the costs of occasional residence with the mother, and was affordable by the father. [ 36 ] Strecko v. Strecko 2013 NSSC 49 is another case with similar factual circumstances. The child in question was a student at Dalhousie and lived away from his parents in a city apartment. He spent some weekends at his mother’s home, and planned to return to live with her for the summer months.

The Court was faced with two questions, namely, the appropriate child support calculation, as well as the appropriate contribution to university expenses (s. 7). It was noted that the Guideline table amount, based on the payor’s salary, would have been $2,525 monthly. [ 37 ] The Court concluded that during the summer months (May-August inclusive),when the child lived with his mother full-time, the full Guideline table amount would be payable.

During the school year, the Court awarded the amount of $1,000 per month, payable only during those months that the child spent significant amounts of time at home (December, February, and April). The court ordered further amounts for university costs, in a proportionate amount for each parent and the child (one third, one third, one third). The payor parent was also ordered to contribute an extra $1,000 per month towards the child’s room and board. [ 38 ] In Lu v.

Sun 2005 NSCA 112 , the Nova Scotia Court of Appeal upheld the trial judge’s ruling requiring that one half the table amount be paid while the child is away at university. [ 39 ] The same or similar conclusions were reached in Gouthro v. Gouthro 2011 NSSC 214 ; Niles v. Munro 2010 NSSC 221 , Provost v. Marsden 2009 NSSC 365 , and Eyking v. Eyking 2012 NSSC 409 . [ 40 ] Regarding the child Haley, I have no difficulty in concluding that support should remain payable for her at the table amount during the months she resides full-time with her mother (May, June, July, August).

I also find it appropriate that some amount of maintenance be paid for the support of the child Haley through the school year. Haley does not reside at home and I accept that the full table amount would not be appropriate. I will therefore assess an appropriate amount for Haley’s child support, pursuant to s. 3(2)(b). [ 41 ] Haley does return home for holidays, and according to the respondent, every second weekend. Her needs during those period of times are considered.

I find that the 50% figure held in the Lu case, supra, to be appropriate during those period of times, and I order payment of child support for Haley at the rate of 50% of the difference between the table amount payment for one child and two children. Haley / s. 7 / Extraordinary Expenses [ 42 ] Haley has significant costs associated with post-secondary education. Last year she contributed a student loan and bursary in the approximately amount of $14,000. I will assume that Haley will continue to seek and receive such a loan/bursary in years to come, in the same approximate amount.

I consider that to be her contribution to her education. [ 43 ] Given that I have ordered a child support amount for Haley, I shall deduct a modest amount from the global figure of $24,000. This $24,000 total included amounts for travel home and other miscellaneous expenses, for which I consider the child support amount to already cover.

I am therefore assessing global costs of approximately $22,000 a year for Haley, which I reduce by $2,000 for tax consequences; this leaves an approximate $20,000 cost for the year. [ 44 ] The student loan and bursaries (estimated $14,000) thereby leave a shortfall of approximately $6,000. I therefore order that both the applicant and the respondent contribute to this shortfall in appropriate proportions to their incomes (applicant = 55.3% of $6,000 = $3,320; respondent = 44.7% of $6,000 = $2,685). [ 45 ] I recognize that these costs may fluctuate.

The children, or either of them, might not be granted a student loan. Tuition could increase dramatically, particularly in the case of Haley who has three years left. Should there be a shortfall in either child’s budget, or a cost that had not been anticipated, the parties shall contribute the shortfall in proportionate shares as I have already discussed.

That is to a yearly maximum of the amounts set out hereinabove (Craig $10,000; Haley $22,000). [ 46 ] I have rejected the applicant’s suggestion that, in relation to s. 7 expenses, the children’s budgets be discussed with them each year, and that contributions simply be “worked out” between the parties/children. I am completely unconvinced that such would be workable. [ 47 ] The Court heard evidence that, at some point in the past year, Haley wished to have tutoring in order to improve her marks. The applicant was approached about this cost, and refused to contribute.

He indicated that he felt tutoring was not necessary for Haley, she was doing well enough in school in order to be accepted to university and the expense was not necessary. As a result, the respondent paid the tutoring cost. [ 48 ] Whether the expense was an appropriate one is beside the point. This example highlighted the potential pitfalls of this

approach. The applicant had no suggestions to make, in the event that the parents and children had a difference of opinion regardingcertain expenses. If conflict arises, the children will become caught in the middle of that conflict. I do not find such an arrangement tobe in the children’s best interests. [49] It was also apparent from the hearing, and a review of the materials before the Court, that the parties have been in significantdispute over the years, and do not have good communication.

In particular, the applicant and his children have gone through periods oflessened communication, including at the present time. The applicant blames the respondent for this; he feels that the respondent bringsthe parties’ difficulties and arguments to the children and, as a result, they become upset with their father and refuse to have contact withhim. [50] In light of this context, it appears to me that the applicant’s suggestion of inviting the children to lay out their expenses to him,is not a recipe for increased closeness; quite the opposite. It is, in my view, inviting conflict and divisiveness.

It also invites the resultthat occurred in relation to the tutoring costs: they were refused by the applicant father and paid for by the respondent mother. This canonly serve to increase the divide between father and children. [51] It is abundantly clear to me that both these parents love their children. They have made them a priority in their lives, bothfinancially and emotionally. I do not make any findings as to the reasons behind the difficulties that have arisen as between the applicantand his children.

The applicant is clearly a committed father; I applaud and encourage his involvement in his children’s lives, although itappears to have been difficult at times. The applicant has consistently paid child maintenance, in increasing amounts, given his incomeat any given time, for which I give him credit. [52] I would, however, disagree with the applicant’s submission that he is in a status of “overpayment”.

Although the maintenanceenforcement program would show a surplus (since the amount being paid is greater than the ordered amount), the applicant isappropriately increasing his payments to meet Guideline table amounts. [53] I also commend the respondent for her obvious commitment to her children, evidenced by her continued attention to their needs,and repeated contribution to any shortfalls they have experienced. [54] Both parties are to ensure that they do not engage the children in the conflict.

In particular, the respondent must refrain fromdiscussing the particulars of court proceedings with the children, and must not speak disparagingly of the applicant in their presence. [55] Furthermore, both parties are to encourage their children to develop their relationship with both parents. Having said that, thesechildren are at an age where they are making their own decisions about their lives, and their parents, and who they want to spend timewith.

I appreciate and acknowledge the applicant’s frustration in relation to his past relationship with his children, and in relation to his(at times) lack of information. These children are now 21 and 19 years of age; each parent will have to forge independent, healthyrelationships with these young adults. [56] The applicant’s counsel, in her written submission, requests a contempt finding in relation to the “court order breaches” thathave been committed by the respondent. I make no finding as to any breaches.

This issue of contempt was not raised by the applicant inhis application, nor at any time during the hearing. The matter was not before me, and the respondent was not asked to respond to such asuggestion. I will not entertain that request at this time. If the applicant wishes the Court to consider a contempt finding, he shouldapply for such in the appropriate manner, and allow the respondent the opportunity to respond. [57] With respect to the issue of the children being paid directly, I note the recent case of Strecko v. Strecko 2013 NSSC 49. Atpara. 45 onward, the Court reviews this issue: [45] Mr.

Strecko argues that any support he is ordered to pay should be paid to his son directly. The authority for doing so is reviewedin Glaspy v Glaspy 2011 NBCA 101 , 2011 NBCA 101. It is acknowledged that it is unusual to order child support to be paiddirectly to a child.

The policy basis for the Court’s reluctance is a desire to avoid involving children in this issue and the accompanyingconflict and the need for the parent incurring the expenses relating to rearing a child to receive a contribution from the other parent. [46] I agree that the Court must be reluctant to order child support to be paid to the child, given that the child support payments are tomeet some of the parenting costs of the payee parent and associated with the child ‘living’ in the payee’s parent’s home all or part of thetime. [58] I agree.

Generally speaking, I do not think it appropriate for children to be paid child support amounts directly, as the point ofthe support is to compensate for their living expenses, for which the payee is responsible. [59] However, in relation to s. 7 expenses, these do not involve the respondent directly. I do see it as appropriate that those amountsbe provided to the child directly, or in the alternative, directly to the university. [60] Lastly, applicant’s counsel, in her post-hearing submissions, has indicated a number of items within the order of March 2011that she suggests could be varied/removed.

Respondent’s counsel points out that many of these items were not discussed by the partiesduring the hearing. [61] If the parties, in the varied order which will issue as a result of this proceeding, wish to agree to change/remove certainparagraphs from the 2011 order, they can advise me, and I will consider the changes being suggested. Without consent, I am notprepared to consider any further changes. Conclusion [62] In conclusion: 1. The applicant shall continue to pay table amount child support for the two children to the respondent in the amount of

$1,236 (based on his annual income of $90, 679) during the months of May, June, July, and August of each year, for so long as both children are residing with the respondent and both are dependent children. 2. The applicant shall pay table amount child support for the child Craig during the months of September – April inclusive to the respondent, for so long as the child Craig resides with the respondent and remains a dependent child of the marriage. This is in the amount of $763. 3.

The applicant shall pay one half the additional table amount for the child Haley during the months of September – April inclusive to the respondent, for so long as the child Haley is residing at university and remains a dependent child of the marriage. This amounts to an additional $236 per month during those months. 4. Therefore, in relation to child support, payments shall be in the amount of $1,236 from May-August inclusive; and $999 from September – April. I order that these amounts are retroactive to January 1, 2014 (one month following service of the application). 5.

The parties will make the following contributions toward the child Haley’s education expenses (s. 7): the applicant shall contribute $3,320; the respondent shall contribute $2,685. 6. Should either child experience a shortfall in their budget for any year they continue to be dependant and attending post- secondary education, the parties shall contribute to that shortfall in the following proportions: applicant = 55.3%; respondent = 44.7%. This is to a maximum of $10,000 for the child Craig and $20,000 for the child Haley. 7.

Amounts payable for s.7 expenses are to be paid directly to the post-secondary institution and/or to the child. Each parent shall pay one half their ordered contribution on or before the 15 th of September, and the remaining half on or before the 15 th of January, in any year where the child continues to be dependent and attend a post-secondary institution. [ 63 ] I am prepared to hear the parties on costs if they cannot agree. Boudreau, J.