Littler v. Howie, 2012 NSSC 74

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Littler v. Howie, 2012 NSSC 74 Date: 20120206 Docket: 1206-003448 Registry: Sydney Between: Donald Littler Applicant v. Denise Howie Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: October 13, 2011, and January 6, 2012, in Sydney, Nova Scotia Oral Decision: February 6, 2012 Written Decision: February 16, 2012 Counsel: Donald Littler, on his own behalf Denise Howie, on her own behalf By the Court: [ 1 ] Introduction [ 2 ] Donald Littler and Denise Howie are former spouses.

Their two children, 23 year old Vanessa and 21 year old Corey, are the subject of this proceeding. The parties were unable to resolve issues concerning child support. Any possibility of a negotiated settlement was limited because of the parties ’ ongoing conflict, which is charged with bitterness and anger.

[ 3 ] Issues [ 4 ] The court will determine the following issues in this decision:

a) Have material changes occurred since the issuance of the last court order?

b) Has Corey ’ s status as a child of the marriage changed, and, if so, for what period?

c) Has Vanessa ’ s status as a child of the marriage changed, and, if so, for what period?

d) What is the appropriate child support order, if any? [ 5 ] Background [ 6 ] The parties were married on July 26, 1986, and separated approximately 11 years later. Their divorce was finalized on May 10, 2001. The first Amended Corollary Relief Judgment issued on January 13, 2004. The second Amended Corollary Relief Judgment issued on January 17, 2006. This last order was a Varied Corollary Relief Judgment which issued on February 18, 2010. [ 7 ] Nine months elapsed before another variation application was filed. Mr. Littler filed his variation application on October 22, 2010; Ms.

Howie filed a counter application on November 23, 2010. [ 8 ] During the pretrial conference of May 24, 2011, the issues which were to be determined at the variation hearing were discussed and set out in the pretrial conference memo, as were disclosure directions. [ 9 ] The hearing proceeded on October 13, 2011 and January 6, 2012. The following people testified during the hearing: Donald Littler; Barb Larade, from the Maintenance Enforcement Program; Sherry MacIntyre; Denise Howie; Vanessa Littler; and Corey Littler.

The court adjourned its decision to allow for the opportunity to review the exhibits, viva voce evidence, and the written submissions of the parties, including Mr. Littler ’ s extensive review of the law. Both parties were self-represented at the time of this variation hearing. [ 10 ] Analysis [ 11 ] Have material changes occurred since the issuance of the last court order? [ 12 ]

Section 17 of the Divorce Act provides the court with the jurisdiction to vary retroactively or prospectively child support. Section 17(4) of the Divorce Act states the factors the court must consider before varying a child support order as follows:

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. Section 17(6.1) states that the court must vary child support in accordance with the applicable guidelines. [ 13 ] Each party bears the burden of proof in relation to their application. The Supreme Court of Canada indicated that there is only one standard of proof in civil cases, proof on the balance of probabilities, which must be proven by clear, convincing, and cogent

evidence: C.(R.) v. McDougall 2008 SCC 53. [14] The fairness of the current order is not in contest; the current order is presumed correct at the time the order issued. Therefore,a material change must be proven to vary the current order. [15] A material change in circumstances is a substantial, unforeseen, and permanent change, that would render the existing orderinappropriate. Minor changes are insufficient to justify a variation order. In Willick v.

Willick (SCC), [1994] 3 S.C.R.670, the Supreme Court of Canada held that a material change must be of such a magnitude that, if the court had known of the changedcircumstances at the time of the original order, it would have crafted a different order on different terms. [16] Since the order of February 2010, I find the following material changes in the circumstances:

a) Corey returned to school for an education.

b) Vanessa’s income increased.

c) Mr. Littler’s income increased. [17] I find that a material change in circumstance has been proven by both parties, and the court, thus, has jurisdiction to proceedwith the variation proceeding. [18] Has Corey’s status as a child of the marriage changed, and, if so, for what period? [19] Mr. Littler stated during the pretrial conference, and in his brief, that Corey regained the status of “child of the marriage” forthe period between September 2010 and April 2011. The court was not entirely clear on Mr. Littler’s position at the time of the hearing. [20] For her part, Ms.

Howie seeks child support for Corey from September 2010 until January 2012, and then again should Coreyreturn to upgrade his education. Her application was filed at the time Corey had returned to school. [21] “Child of the marriage” is defined in s. 2(1) of the Divorce Act as follows: “child of the marriage” means a 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 theircharge or to obtain the necessaries of life; [22] “Age of majority” is also defined in s. 2 of the Divorce Act as follows: “age of majority”, in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarilyresides, or, if the child ordinarily resides outside of Canada, eighteen years of age;

[23] The age of majority in this province is 19 years. [24] Our courts have traditionally held that “other cause,” which prevents a child from withdrawing from parental charge, or fromobtaining the necessaries of life, includes a child’s attendance at university, or other post secondary educational institution. Whether ornot a child remains a child of the marriage is a factual finding for the trial court. In Martell v. Height 1994 NSCA 65 , [1994]N.S.J.

No. 120 (C.A.) Freeman, J.A., states as follows at para 8: It is clear from the various authorities cited by counsel that courts recognize jurisdiction under s. 2(1) of the Divorce Act to hold parentsresponsible for children over sixteen during their period of dependency. How long that period continues is a question of fact for the trialjudge in each case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus ofproving dependency grows heavier.

As a general rule parents of a bona fide student will remain responsible until the child has reached alevel of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry-level employment in anappropriate field. In making this determination the trial judge cannot be blind to prevailing social and economic conditions: a bachelor'sdegree no longer assures self-sufficiency. [25] Case law confirms that post secondary educational training programs that entitle an adult child to support are varied.

The courtexercises broad discretionary powers under the Divorce Act in the determination of when a child is, and when a child ceases to be, a childof the marriage for support purposes. I have reviewed the Canadian case law presented by Mr. Littler, and have considered itsimplications. I have not considered Mr. Littler’s outline of the American experience because it has no bearing on the decision which Imust make, nor do I know if Mr. Littler’s chart and findings are accurate. I must determine this case based upon Canadian law, and notAmerican law. [26] I find that Ms.

Howie has proven, on the balance of probabilities, based upon clear, convincing, and cogent evidence, thatCorey Littler was a child of the marriage for the period between September 2010 until May 2011. I recognize that Corey completed hiscourse at the end of April, but would require about a month to find work and apply himself. I find that Ms. Howie has not met theburden of proof entitling Corey to the status of a child of the marriage for any later period of time. [27] I make this decision for the following reasons:

a) Corey participated in the Continuing Care Assistant Program at Cape Breton Business College from September 2010 until April2011. He passed his courses and attended the program. The completion of this program would have enabled Corey to obtain full timeemployment in the field if he had chosen to do so. Corey is thus prepared for entry level employment in his chosen field.

b) Corey’s decision not to pursue employment in this field is a personal decision. He must bear the consequences of his actions.

c) Although, Corey attended Business College for approximately four months in Halifax in 2011, I have little detail about the courseand Corey’s progress. He did not finish the course. Corey may, or may not, enter further educational programs. I find, however, thatCorey is not interested in pursuing additional educational programming.

d) Corey’s true interest is found in the mixed martial arts field, and its associated competitions. There is nothing negative aboutCorey’s choice. This choice does not involve the necessity of further education, and, thus, Corey is no longer the financial responsibilityof either parent. [28] Corey presented as a thoughtful, respectful, and mature young man. This is commendable given the lack of support from hisfather, and the conflict that Corey has observed since at least the parties’ separation. Child support will be payable by Mr. Littler forCorey from September 2010 until May 2011. [29] Has Vanessa’s status as a child of the marriage changed, and, if so, for what period?

[30] Mr. Littler is adamant that Vanessa is no longer a child of the marriage for the following reasons:

a) Vanessa unilaterally terminated the father/daughter relationship in May 2009, and refuses to cooperate with Mr. Littler, or followany of his directions. She is an adult, and, thus, cannot expect Mr. Littler to support her in such circumstances.

b) Vanessa earns significant income, and is financially self supporting.

c) Vanessa has become an eternal student and should have completed her education by now.

d) Vanessa does poorly in school, and she is concerned about other activities unrelated to her education. As such, Vanessa’s marksare not appropriate. In particular, Mr. Littler was concerned about the pageant, trips and general lifestyle choices made by Vanessa.

e) Mr. Littler is concerned about his own lack of income and inability to support Vanessa. [31] Ms. Howie, on the other hand, seeks ongoing support for Vanessa. She states that Vanessa struggles because she is forced towork more than one job because of the lack of support from Mr. Littler. Ms. Howie states that Vanessa continues to be a child of themarriage. [32] I agree with Ms. Howie. Vanessa continues to be a child of the marriage for the purposes of child support for the followingreasons:

a) Although there is some judicial recognition for the termination of child support where the adult child is responsible for theestranged relationship, such principle is not applicable to this case. Vanessa is not responsible for the estranged relationship. Mr. Littleris a demanding, selfish, and judgmental father. His tireless efforts to stop paying child support led to the estranged relationship.

b) Vanessa is forced to work more than one job in an effort to meet all of her reasonable expenses for attending university. Theseinclude tuition and related fees, books, supplies, and a motor vehicle. She is driving a vehicle with in excess of 130,000 kilometres. Thevehicle requires insurance, gas, and ongoing maintenance and repairs, which Vanessa is often unable to afford on a timely basis. Themotor vehicle is necessary because Vanessa does not live in residence and, further, because Vanessa needs a vehicle to travel to work,and also to travel to the various locations in the area for practice nursing training.

Nursing training at different institutions is part of thecourse requirement for Vanessa.

c) Vanessa would not work more than one job if she had the financial support of her father. Vanessa attends university on a full timebasis, in a demanding field of study. In addition, she works at Dooley’s and Sunfire Tanning on a part time basis, which equates to a fulltime job. She also worked at Mappins during the Christmas break. In 2010, she grossed $18,112. Mr. Littler asked the court to imputeincome for tips which Vanessa earned. However, when Vanessa took the stand, Mr. Littler failed to ask Vanessa how much she earned,if any, in tips. There is insufficient evidence to impute a significant amount of additional income to Vanessa for tips.

d) Vanessa’s income pays for her own reasonable expenses related to university and work. Vanessa still lives at home with Ms.Howie. Ms. Howie pays for Vanessa’s shelter, food, and other expenses. Ms. Howie earns a limited income. Ms. Howie has an ongoingchild support need for Vanessa.

e) Although Vanessa obtained a student loan, I do not treat the student loan as income, as per Robertson v. Robertson 2007 NSSC128 , [2007] N.S.J. No. 195 (S.C.). In this case, Vanessa contributes substantially to her university expenses, and therefore, Ido not consider the loan as anything other than what it is - a debt that requires repayment.

f) The last court order is dated February 18, 2010. At that time, Haley, J. found Vanessa to be a child of the marriage, as she had returned to school and was residing with her mother as noted in clause 3 of the last order. Vanessa continues to attend the nursing program, which she began in 2009. When Vanessa graduates with her nursing degree, she will be in a position to gain entry level employment, and at that time will likely no longer be a child of the marriage.

g) Mr. Littler expressed concern about Vanessa ’ s lifestyle. In particular, he was against her participation in the Ms. World pageant, vacations, and travel to Halifax. The Miss World pageant did not cost Vanessa any money because of sponsorship and fundraising. Vanessa spent very little on her trips, and given the extent of her work, both academically and in the work force, and given the extent of the conflict, Vanessa does not cease to be a child of the marriage because she travelled.

h) The fact that Mr. Litter is attending an educational institution and has reduced income goes to the quantum of child support payable, and not to the entitlement issue. [ 33 ] In all of the circumstances, I find that Mr. Littler has not proven, on the basis of clear, convincing, and cogent evidence that Vanessa ceased to be a child of the marriage since the last court order issued in February 2010. [ 34 ] What is the appropriate child support order, if any? [ 35 ] Section 3(2) of the Federal Child Support Guidelines states that the appropriate quantum of child support payable for a child the age of majority, or older, is as follows:

(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 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. [ 36 ]

Section 7of the Guidelines provides the court with the jurisdiction to order additional support for the payment of university expenses, and health related expenses. [ 37 ] Mr. Littler is required to pay the table amount of child support for Corey from September 2010 until May 2011, and continuing for Vanessa. Mr. Littler is not required to pay additional s. 7 expenses. Insufficient evidence was produced in relation to the expenses associated with Vanessa ’ s braces. I have not dismissed the brace claim on its merits, and should Ms.

Howie gather the necessary documentation she can make a motion, provided all legal requirements are met. Whether she will be successful will be determined at the time of the application. University expenses are paid in full by Vanessa Littler ’ s income, and thus will not be the responsibility of either parent. [ 38 ] The table amount of support will be based on Mr. Littler ’ s income. The last court order, dated February 2010, was based on an annual income of $21,850 to Mr. Littler. In 2010, however, Mr. Littler actually earned $68,221, less union dues of $220. Mr.

Littler ’ s 2010 income included RRSPs of $5,445, and a retirement package administered by Magna of $33,139. This package was used by Mr. Littler as income in 2010. It is properly considered as income for child support purposes for that year. In 2011, Mr. Littler ’ s income was $24,317. [ 39 ] Mr. Littler will thus pay Ms. Howie child support as follows, based upon these findings:

a) Commencing March 1, 2010 until August 31, 2010, the monthly amount of $591, based upon one child, and an income of $68,001;

b) Commencing September 1, 2010 and until December, 31, 2010, the monthly sum of $957, based upon two children, and an income of $68,001;

c) Commencing January 1, 2011, until May 31, 2011, the monthly sum of $360, based upon two children, and an income of $24,317;

d) Commencing June 1, 2011 until December 31, 2011, monthly support of $208, based upon one child, and an income of $24,317; and

e) New Child Support Tables came into effect on December 31, 2011, therefore, commencing January 1, 2012, until further order from a court of competent jurisdiction, the monthly sum of $190, based upon one child, and an income of $24,317. [ 40 ] Conclusion [ 41 ] The variation applications are granted such that Corey Littler is found to be a child of the marriage from September 2010 until May 2011; Vanessa Littler continues to be a child of the marriage. The quantum of support payable is based upon Mr. Littler ’ s income, and the Federal Child Support Guidelines . [ 42 ] Mr.

Littler ’ s obligation to pay ongoing child support is conditional upon him receiving a copy of Vanessa ’ s marks, and her income tax return and assessment in June of each year, and proof of enrollment in September of the next academic year. A copy of this information will also be filed with the court. If Mr. Littler does not receive this documentation, then Mr. Littler will not be required to pay child support commencing the month following the failure to provide the information to Mr. Littler. Forgeron, J.