2012 NBCA 63, 2012 NBCA 63

COURT OF APPEAL OF NEW BRUNSWICK 49-11-CA MICHAEL SIMON (Applicant) APPELLANT MICHAEL SIMON (Requérant) APPELANT - and - - et - DAWN MARIE ADEY (Respondent) RESPONDENT DAWN MARIE ADEY (Intimé

e) INTIMÉE Simon v. Adey, 2012 NBCA 63 Simon c. Adey, 2012 NBCA 63 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: March 15, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 15 mars 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 79 Décision frappée d’appel : 2011 NBBR 79 Preliminary or incidental proceedings: Court of Queen Bench 2009 NBQB 31 2009 NBQB 4 (NB CA), [1993] N.B.J.

No. 269(QL) [1992] N.B.J. No. 616 (QL) Procédures préliminaires ou accessoires : Cour du Banc de la Reine : 2009 NBBR 31 2009 NBBR 4 (NB CA), [1993] A.N.-B. no 269(QL) [1992] A.N.-B. no 616 (QL) Appeal heard: September 14, 2011 Appel entendu : Le 14 septembre 2011

Judgment rendered: July 19, 2012 Jugement rendu : Le 19 juillet 2012 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Larlee The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Bell Counsel at hearing: For the appellant: Rodney J. Gillis, Q.C., and Scott N. Larson For the respondent: Brenda G. Noble, Q.C. Avocats à l’audience : Pour l’appelant : Rodney J. Gillis, c.r., et Scott N. Larson Pour l’intimée : Brenda G. Noble, c.r. THE COURT The appeal is dismissed.

The appellant is ordered to pay costs in the amount of $3,000. LA COUR Déboute l’appelant. Elle le condamne à des dépens de 3 000 $. The judgment of the Court was delivered by GREEN J.A. I. Introduction [ 1 ] The appellant, a medical doctor, and the respondent are the parents of a 21-year-old daughter, Lauren, who is presently pursuing a degree at Dalhousie University in Halifax. The extent of the appellant’s involvement in his daughter’s life to date has been the payment of his child support obligations, and these have been the focus of a series of court proceedings over the years.

Most recently, the appellant sought to terminate his support payments when his daughter reached the age of majority. A judge of the Court of Queen’s Bench, Family Division, rejected the appellant’s arguments, and maintained his support obligations. That decision forms the basis of this appeal. In my opinion, the motion judge produced a well reasoned, well explained, and well written decision. For the reasons which follow, I would not interfere. I would dismiss the appeal and order costs payable to the respondent. II.

Background [ 2 ] The relationship between the parties which brought about the birth of their daughter Lauren in 1991 was, in a word, brief. The appellant went on with his life, married in 1994, and he and his wife have three children. [ 3 ] An order dated January 7, 1993, established paternity and imposed child support obligations

on the appellant (see D.M.A. v. M.S. (1993), (NB CA), 133 N.B.R. (2d) 359, [1993] N.B.J. No. 269 (C.A.) (QL)). Asubsequent order, dated December 6, 2004, increased the amount of support. An interim order in May, 2008, also increased his monthlysupport obligations. Finally, a variation order dated January 26, 2009, again increased his monthly child support obligations, to $2,811.

The appellant was ordered to pay arrears of $57,696 and to pay his proportionate share of special expenses pursuant to s. 7 of the FederalChild Support Guidelines, SOR/97-175, as applicable to the present context pursuant to the Child Support Guidelines Regulation –Family Services Act, N.B. Reg. 98-27, s. 3(1). [4] The respondent and her daughter reside in Saint John, New Brunswick. Lauren graduated fromhigh school in June, 2009, with high honours. With the intention of pursuing a career as a pharmacist, Lauren enrolled in the Bachelor ofScience program at Dalhousie, and commenced her studies that September.

For a variety of reasons, Lauren struggled during her firstyear of post-secondary education, and following the completion of her second term she made the decision to transfer to the Bachelorof Commerce program at the same university. She attended six weeks of intersession to facilitate her transition from science tocommerce. Lauren returned to Dalhousie in the fall of 2010, and enjoyed much better academic success as a commerce student. Of particular importance to this appeal is the fact that Lauren turned nineteen on June 13, 2010. III. The Decision Appealed From [5] The motion judge provided a concise and clear

summary of his findings at paragraph 63 of hisdecision: The Court’s ruling is that: (

a) The respondent has established that Lauren is unable to withdraw from parental charge because of her pursuit of reasonableeducation; (

b) The applicant has failed to rebut the presumptive rules as to approach and amount laid down in Pollock v. Rioux, supra; (

c) The applicant’s obligation to pay “child support” under s. 3 and “special expenses” under s. 7 of the Child Support Guidelinescontinues and now includes his prorated net share of Lauren’s “expenses for post-secondary education”; (

d) The monthly child support is $2,811.00, continued payable of the first of each month until further order of the Court; (

e) The s. 7 “special expenses” related to medical, health and dental for 2009, 2010 and projected to the end of 2011 are $5,548.81 andshall be paid in full on or before April 1, 2011. “Special expenses” in ensuing years shall be paid within 30 days of the respondentproviding the applicant with proper receipts; (

f) The applicant’s prorated share of s. 7 “expenses for post-secondary education” for 2009, 2010 and projected to the end of 2011 are$14,420.20 and are to be paid in full on or before June 1, 2011; (

g) The applicant’s prorated prospective share of s. 7 “expenses for post-secondary education” shall be paid semi-annually on or before January 1st and September 1st in ensuing years, commencing January 2012, until further order of the Court. For calculation purposes,L’s annual contribution in ensuing years is fixed at $3,000; (

h) The respondent shall provide the applicant with a copy of a transcript of Lauren’s marks for each term within a reasonable periodfollowing the end of term; (

i) The respondent is entitled to costs of $3,500, all inclusive.

IV. Issues [6] The appellant sets out four grounds of appeal, alleging the motion judge erred: 1. […] by finding that the appellant had failed to rebut the presumptive rules as to approach and amount set out by this Court in Pollockv.

Rioux, 2004 NBCA 98, 278 N.B.R. (2d) 351; 2. […] by requiring the appellant to pay both the table amount of child support and certain special expenses for university, and inparticular that the appellant must continue these payments while and even though the child for whom the support is paid does not resideat the home during the academic year; 3. […] in failing to require the dependent child to obtain student loans in order to contribute to her own education; and 4. […] in ordering the appellant to pay special expenses retroactively beyond the date of which he was given notice of those specialexpenses; […]. V.

Law and Analysis A. Standard of Review [7] It is well established that this Court will only interfere with a decision in a family matter inlimited circumstances, and this is especially true of decisions dealing with entitlement to, and quantum of, support. A recent review ofthe relevant case law can be found in Smith v. Smith, 2011 NBCA 66, 375 N.B.R. (2d) 208, per Quigg J.A.: In family matters, trial judges’ decisions are given considerable deference. In MacDonald v. MacDonald, 2011 NBCA 25, [2011]N.B.J.

No. 81 (QL), Larlee J.A. says: The standard of review that applies to family matters generally is that the judge’s decision must be given considerable deference. Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error inprinciple, a significant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2S.C.R. 518, [1999] S.C.J. No. 9(QL) para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v. Levesque, 2009NBCA 47, [2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr.

P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton,2008 NBCA 87, 338 N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v. V.B.,2007 NBCA 69, 321 N.B.R. (2d) 314, para. 2). […] Richard J.A. discusses the standard of review respecting findings of fact in Lang v. Lang, [2007] N.B.J. No. 348 (C.A.) (QL): The law is equally clear that the Court of Appeal cannot re-try a case.

The Court of Appeal may only overturn a trial judge's finding offact [if] it is the result of a palpable and overriding error, and may only interfere with a discretionary order if it is founded upon an errorof law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence (seeHousen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 S.C.C. 33 and H.L. v. Canada(Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), 2005 SCC 25 with regard to findings of fact, and BritishColumbia(Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, [2003] S.C.J. No. 76 (QL), 2003 S.C.C.71, at para. 43, with regard to discretionary orders). [paras. 10-12]

Therefore, in order to be successful, the appellant must satisfy the Court the motion judge’s decision is the product of an error of law, an error i n principle, a significant misapprehension of the evidence, or is clearly wrong. In the absence of at least one of the above, deference will be shown and the decision below must stand. B. The Approach to and Amount of Child Support and Special Expenses [ 8 ] The starting point for the motion judge, quite properly, was to determine whether Lauren had an ongoing entitlement to support once she reached the age of majority.

His finding that she was so entitled is not challenged on appeal. The task for the motion judge was then to determine the amount of support payable. To make this determination, he first reviewed the pertinent provisions of the Family Services Act , S.N.B. 1980, c. F-2.2, which are as follows: SUPPORT OBLIGATIONS, CUSTODY AND ACCESS 113

(2) For the purposes of an application under

section 115 for an order for the support of a dependent […] (

b) who is a child at or over the age of majority, the support to be provided pursuant to the obligation referred to in paragraph (1) (

b) shall be an amount determined in accordance with the regulations respecting orders for child support or, if the court considers that amount to be inappropriate, an amount the court considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child. OBLIGATIONS DE SOUTIEN, GARDE ET DROIT DE VISITE 113

(2) Aux fins d’une demande d’ordonnance en vertu de l’article 115 pour soutien d’une personne à charge […]

b) qui est un enfant majeur, le soutien à pourvoir selon l’obligation visée à l’alinéa

(1) b) doit être d’un montant fixé conformément aux règlements concernant les ordonnances de soutien pour enfant ou, si la cour est d’avis que ce montant n’est pas indiqué, un montant qu’elle juge indiqué compte tenu des ressources, des besoins et, d’une façon générale, de la situation de l’enfant, ainsi que de la capacité financière de chaque parent de contribuer au soutien alimentaire de l’enfant. [ 9 ] The motion judge then turned his attention to the regulation referenced above, which is the provincial Child Support Guidelines Regulation – Family Services Act , which provides as follows:

NEW BRUNSWICK REGULATION 98-27 under the Family Services Act (O.C. 98-197)

Definitions 2 In this Regulation “Federal Guidelines” means the Federal Child Support Guidelines established by regulation pursuant to

section 26.1 of the Divorce Act (Canada), as the Federal Child Support Guidelines read on June 11, 2009. 2001-62; 2006-44; 2007-36; 2009-83 Adoption of Federal Guidelines 3

(1) Subject to subsections (2) and (3), the Federal Guidelines are adopted as the guidelines in respect of orders for child support. RÈGLEMENT DU NOUVEAU-BRUNSWICK 98-27 pris en vertu de la

Loi sur les services à la famille (D.C. 98-197) Définitions 2 Dans le présent règlement « lignes directrices fédérales » désigne les lignes directrices fédérales sur les pensions alimentaires pour enfants établies par règlement conformément à l’

article 26.1 de la

Loi sur le divorce (Canada), telles que les lignes directrices fédérales sur les pensions alimentaires pour enfants se lisaient le 11 juin 2009. 2001-62; 2006-44; 2007-36; 2009-83 Adoption des lignes directrices fédérales 3

(1) Sous réserve des paragraphes (2) et (3), les lignes directrices fédérales sont adoptées en tant que lignes directrices concernant les ordonnances de soutien pour enfant. [ 10 ] The applicability of the Child Support Guidelines having been established, the motion judge examined the relevant provisions thereof:

Federal Child Support Guidelines ( SOR/97-175 ) AMOUNT OF CHILD SUPPORT Presumptive rule 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 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. Child the age of majority or over

(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. Lignes directrices fédérales sur les pensions alimentaires pour enfants ( DORS/97-175 ) MONTANT DE L’ORDONNANCE ALIMENTAIRE Règle générale 3.

(1) Sauf disposition contraire des présentes lignes directrices, le montant de l’ordonnance alimentaire à l’égard d’enfants mineurs est égal à la somme des montants suivants :

a) le montant prévu dans la table applicable, selon le nombre d’enfants mineurs visés par l’ordonnance et le revenu de l’époux faisant l’objet de la demande;

b) le cas échéant, le montant déterminé en application de l’article 7. Enfant majeur

(2) Sauf disposition contraire des présentes lignes directrices, le montant de l’ordonnance alimentaire à l’égard d’un enfant majeur visé par l’ordonnance est :

a) le montant déterminé en application des présentes lignes directrices comme si l’enfant était mineur;

b) si le tribunal est d’avis que cette approche n’est pas indiquée, tout montant qu’il juge indiqué compte tenu des ressources, des besoins et, d’une façon générale, de la situation de l’enfant, ainsi que de la capacité financière de chaque époux de contribuer au soutien alimentaire de l’enfant. [ 11 ] The Guidelines refer to the above provisions as the “presumptive rule” under the heading “Amount of Child Support”. The motion judge also referenced s. 7 of the Guidelines :

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; Dépenses spéciales ou extraordinaires 7.

(1) Le tribunal peut, sur demande de l’un des époux, prévoir dans l’ordonnance alimentaire une somme, qui peut être estimative, pour couvrir tout ou

partie des frais ci-après, compte tenu de leur nécessité par rapport à l’intérêt de l’enfant et de leur caractère raisonnable par rapport aux ressources des époux et de l’enfant et aux habitudes de dépenses de la famille avant la séparation : […]

e) les frais relatifs aux études postsecondaires; [ 12 ] This Court considered the issue of the ongoing support obligation for a child who has reached the age of majority and is unable to withdraw from the charge of her or his parents by reason of legitimate educational pursuits in Pollock v. Rioux , 2004 NBCA 98 , 278 N.B.R. (2d) 351. Richard J.A., for the Court, stated: Thus, in the usual case, the analytical framework for the determination of support consistent with s. 113(2) (

b) of the Family Services Act , s. 3(2) of the Guidelines and the principles set out in Francis v.

Baker , for a child who is at or over the age of majority but who is still eligible for support pursuant to the Family Services Act , is as follows: 1) There is a presumption that support for an eligible child at or over the age of majority will be determined pursuant to s. 3(1)of the Guidelines - that is the table amount plus any amount determined under s. 7; 2) If the application of the presumptive rule is challenged, the presumption can be rebutted by either the claimant or the parent against whom the order is sought by clear and compelling evidence that the approach set out in s. 3(1) of the Guidelines is inappropriate - that is unsuitable for the determination of the support; 3) If the approach set out in s. 3(1) of the Guidelines is found to be appropriate, the court must determine the amount of support pursuant to that approach; 4) There is a presumption that the amount established pursuant to s. 3(1) of the Guidelines is appropriate but, like the other presumption, it can be rebutted by clear and compelling evidence that it is unsuitable; 5) If either the approach or the amount is shown to be inappropriate, the court must determine 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 parent to contribute to the support of the child." [para. 40]

[ 13 ] As the Guidelines and the leading case in this province make clear, the starting point is the presumption in favour of the Guidelines amount when determining child support in a case such as this. The appellant argues, and cites jurisprudence (see, for example, W.P.N. v. B.J.N. , 2005 BCCA 7 , [2005] B.C.J. No. 12 (QL)) to support his assertion that when the child is living outside the recipient’s home in order to attend university, the presumption is effectively rebutted and the Guidelines amount is inappropriate. With respect, I disagree.

It is incumbent upon the motion judge to conduct an analysis using the framework articulated above, and reach a determination based on the facts of the case. It may be that the result of the analysis is a determination the Guidelines amount is inappropriate, but that is by no means a certain outcome. [ 14 ] My reading of the motion judge’s decision discloses no reversible error. He considered the arguments put forth by the appellant, and conducted the appropriate analysis, but was not persuaded the presumption had been rebutted.

He concluded neither the approach nor the amount was inappropriate, and I would not interfere with his findings. The motion judge also considered the appellant’s assertion that imposing both the Guidelines amount for child support and a prorated share of special expenses for university costs would be excessive, and came to the conclusion it was not inappropriate. Again, I would not interfere. [ 15 ] The first two grounds of appeal are related in that they challenge the quantum of child support and special expenses to be paid, based on the fact Lauren is living away from home while attending university.

Given my determination that there is no reversible error in the motion judge’s decision, I would dismiss both grounds one and two. [ 16 ] Parenthetically, I offer the observation that even though a child is away attending university, it is often the case that “home” continues be where she resides with her parent or parents between semesters and on holidays. In the present case, that is the situation. Simply because a child is residing elsewhere for certain periods of the academic year, the monthly mortgage payment does not change. Property taxes do not change. Home owner’s insurance rates are not decreased.

Any corresponding reduction in food and utilities costs is likely more than offset by similar expenses being incurred by the child while living in student accommodations. C. Payment of Special Expenses Retroactively [ 17 ] The appellant’s third ground of appeal attributes error to the motion judge in ordering the appellant to pay a prorated share of special expenses retroactively beyond the date on which the appellant was given notice of such expenses.

He argues the respondent as custodial parent was obligated to provide notice of those special expenses she wished to have him contribute toward, and that he received no such notice until October, 2010.

The motion judge determined: The applicant’s prorated share of s. 7 “expenses for post-secondary education” for 2009, 2010 and projected to the end of 2011 are $14,420.20 and are to be paid in full on or before June 1, 2011. [p. 25, Appeal Book] [ 18 ] The respondent’s position is that this is an issue of quantification, not retroactivity, and points to the order of Baird J., which was effective December 17, 2008, as imposing the appellant’s obligation to “pay his proportionate share of special expenses” (para. 59).

The respondent further argues this is not a new claim, but rather an existing obligation which is ongoing, and as for notice, attributes the problem in part to the complete lack of communication between the parties. [ 19 ] In support of his position, the appellant relies upon the Supreme Court of Canada decision in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v.

Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, per Bastarache J.: The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.

However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing. [para. 125]

[ 20 ] With respect, I am of the opinion the motion judge made no reversible error in ordering special expenses for post-secondary education to be paid retroactively. The appellant was fully aware of his obligation to pay a prorated share of special expenses. He has chosen to have nothing whatsoever to do with his daughter. To the knowledge of the motion judge, the appellant has never even met Lauren. It can hardly have been a shock to discover Lauren was intending to pursue post-secondary education. Most parents would want that for their children.

To deny retroactive payment to the respondent in this situation because of her delay in providing notice would be extremely prejudicial to Lauren, and would overlook the appellant’s own conduct. Had he shown even the slightest interest in his daughter’s well being, he would have known she was planning to attend and subsequently was attending university. There is nothing novel or out of the ordinary in such an expense. I would dismiss the third ground of appeal. D.

Failing to Require Child to Obtain Student Loans [ 21 ] The appellant is of the view that his daughter should be required to obtain student loans in order to contribute toward the cost of her education. In his written submission, the appellant quantifies this view as follows: “It would be reasonable to require Lauren to acquire at least $5,000 in student loans each year”. For her part, the respondent makes the point that the motion judge did require Lauren to contribute a portion of her annual income from part-time and summer employment toward the cost of her education.

As for student loans, the respondent maintains the motion judge made no palpable and overriding error when he considered the evidence and determined it was not necessary to require Lauren to secure loans. [ 22 ] The motion judge fully considered the degree to which Lauren should be required to shoulder a portion of the financial burden for her university education. He came to the following conclusion: My review leads me to only one conclusion on the facts of this case. Lauren is not required to impoverish herself to any level through loans so as to be able to pursue reasonable education.

The combined financial abilities of her parents make any such recourse unnecessary. To conclude otherwise would be discordant with the tenor and language of

section 1 and

section 7 of the Child Support Guidelines and manifestly unfair to her. As stated by Scott C.J. in Rebenchuk v. Rebenchuk : … I agree with the view that, ordinarily, student loans ought to be required only when the means of the child combined with the means of the parents leave a shortfall. It is also to be remembered that student debt delays the cost of education. It is not a reduction. [para. 57] [ 23 ] It is unclear from either the appellant’s written submission or oral argument before this Court what error the motion judge is alleged to have made.

The appellant is simply of the opinion his daughter should be forced to obtain student loans, and is unhappy with the contrary finding of the motion judge. It is not the role of an appellate court to retry this or any issue, and I see no error, reversible or otherwise, in the decision of the motion judge. I would dismiss the fourth ground of appeal as well. VI. Disposition [ 24 ] I find no merit in any of the grounds advanced by the appellant, and would dismiss the appeal. I would order the appellant to pay costs in the amount of $3,000. _____________________________ BRADLEY V. GREEN, J.A. WE CONCUR:

________________________________ M.E.L. LARLEE, J.A. _________________________________ B. RICHARD BELL, J.A.