S. CA., Applicant, - v. -, 2022 NBKB 238

COURT FILE: FDM-233-2004 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: December 5, 2022 Neutral citation: 2022 NBKB 238 BETWEEN: S. CA., Applicant, - and - S. CO., Respondent (Moving Party). DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, New Brunswick DATE OF HEARING: June 27, 2022 DATE OF DECISION: December 5, 2022 Appearances: For the applicant: per se For the respondent: per se

Summary: Motion for variation of support for a child who has attained the age of majority – Financial dependence

[TRANSLATION] MARIE-CLAUDE BÉLANGER-RICHARD, J. OVERVIEW [ 1 ] The parties are the parents of a child, R.J.C. (R.), born on […], 1997. Following the parties’ separation in 2003, the Court issued several orders pertaining to parenting time, decision-making responsibility, and child support. The latest order, which is still in force, is dated November 18, 2016. The respondent (the father) seeks a retroactive variation of that order, arguing that the child’s residence changed on September 1, 2019, and that the child was financially independent during his 2019-2020 academic year.

In other words, the father requests that his child support obligation cease on August 31, 2019, and that the mother reimburse him all monies paid in child support since that date. [ 2 ] The applicant (the mother) opposes the motion, alleging that the child was still dependent on the parties since he was still attending post-secondary education in 2019-2020.

However, the mother accepts that the father’s child support obligation cease as of the end of April 2020. [ 3 ] In these proceedings, the mother notified the father that she was seeking an adjustment of child support for the period from June 2017 to April 2020 and a financial contribution to certain special expenses incurred during that period. [ 4 ] For the reasons that follow, I terminate the father’s child support obligation to R. as of August 31, 2019, but because of a debt owing by the father that was paid by the child, I limit the reimbursement to the father to the amount of $2,814.

In addition, I grant the mother’s claims for a total of $2,898, consisting of an adjustment of child support from January 2018 to August 31, 2019 ($348), and a contribution from the father towards orthodontic treatment ($2,550). Since the parties owe each other an almost identical amount, I find that neither party shall pay anything to the other. ISSUES [ 5 ] In order to explain my decision in this matter, I will address the following issues:

A) With respect to the father’s claim: 1- Has there been a change in circumstances since the last order dated November 18, 2016, concerning R.’s situation that entails the termination of the father’s support obligation?

B) With respect to the mother’s claims: 1- Is there a legal and factual basis for the claim for adjustment of child support as of January 2017? 2- Should the father contribute to the special expenses that the mother alleges having incurred for the benefit of R.? As the parties were never married, these proceedings are governed by the Family Law Act , S.N.B. 2020, c. 23 (the “ Act ”).

A) FATHER’S CLAIM – TERMINATION OF SUPPORT OBLIGATION [ 6 ] The following facts are not in dispute: - R. was born on […], 1997, and in September 2019 he was 21 years old and had attained the age of majority; - From 2015 to April 2020, R. completed a five-year university program in engineering; - In September 2019, R. commenced his fifth and last year of the program; - On September 1, 2019, R. left his mother’s residence and moved into an apartment; and - Since May 2020, R. has been gainfully employed and neither of his parents contributes to his expenses.

[ 7 ] The November 18, 2016, order (the Order) which the father seeks to vary provides that R. shall reside full-time with his mother and that the father, whose income was $83,160, shall pay child support in the amount of $727 per month starting September 1, 2015. Paragraph 3.3 of the Order provides for a review of support and of the sharing of special expenses in three distinct circumstances: [TRANSLATION] 3.3 The parties shall review the child support and the sharing of special expenses incurred for the child in the following circumstances:

a) in the event of a change in the circumstances of the child’s accommodation;

b) at the end of the child’s first Bachelor’s degree in April 2020, when the parties expect that their obligation to provide support and contribute to the child’s special expenses will cease;

c) in accordance with paragraph 4 of the order dated May 17, 2007, the parties shall continue to disclose their respective incomes as well as the child’s income on an annual basis (the income for the year 2016 shall be disclosed in May 2017 and so on) and any change in the amount of monthly support resulting from a change in the respondent’s income shall be effective as of June 1 st of each year starting in 2017 and shall be based on the previous year’s income, unless the parties otherwise agree. [ 8 ] While the Court’s authority to revoke or vary a child support order is based on a change of circumstances ( s. 22 of the Act ), the Order to which the parties consented provides for the possibility of a review of support and of the sharing of special expenses in three specific circumstances, one of which is a change in the child’s residence.

As our Court of Appeal explained in Black v. Black , 2015 NBCA 63 , a review does not require proof of a change of circumstances, but does require that “the terms of the review have been ‘tightly delimited’ in the original order” (at para. 15). The Court of Appeal went on to explain that “[t]he rationale for this instruction is grounded in the prohibition against re-litigation of a decided issue.” [ 9 ] In this matter, the mother does not dispute that there was a change in the child’s accommodation on August 31, 2019.

In fact, R. no longer resides with his mother and has been renting an apartment since September 1, 2019. Consequently, and in accordance with paragraph 3.3 of the Order, a review of the child support and of the sharing of special expenses is required. [ 10 ] However, even if support is to be reviewed, the mother argues that R. is still entitled to support, as he is still pursuing post- secondary education. As a result, the mother’s position is that only the amount of support needs to be reviewed pursuant to subparagraph 3.3(

a) of the Order. In other words, the mother alleges that the issue of the child’s entitlement to support while attending university has already been decided and should not be relitigated under subparagraph 3.3(

a) of the Order, but the amount of support may be subject to variation because of the child’s change of residence. [ 11 ] As of the date of the Order, i.e. November 18, 2016, R. had begun his university program. The parties were aware that R. would not complete his Bachelor of Engineering degree until April 2020, as stated in subparagraph 3.3(

b) of the Order. Furthermore, this subparagraph 3.3(

b) shows that the parties expected their support obligation to cease in April 2020 and not prior to that date. In light of subparagraph 3.3(

b) of the Order, it flows from a reasonable and coherent

interpretation of subparagraph 3.3(

a) that a change in the child’s residence does not extinguish his entitlement to support but opens the door to a review of the amount of his support. Subparagraph 3.3(

b) of the Order therefore supports the mother’s position in favour of a restrictive

interpretation of subparagraph 3.3(a). [ 12 ] The parameters for a review proceeding are defined by the terms of the Order. In my view, it is appropriate to limit the review of child support under subparagraph 3.3(

a) of the Order to the amount, i.e. because of the change in the child’s residence. This is a logical and reasonable

interpretation of the terms of the Order and, more specifically, of paragraph 3.3. [ 13 ] On the other hand, the father also argues that there has been a change of circumstances due to the fact that R. was no longer a child under the charge of his parents during the 2019-2020 academic year. This change of circumstances alleged by the father arises from the definition of child at

section 9 of the Act , which reads as follows: 9 In this Part, “child” means [...]

(

b) a person who has attained the age of majority who is under the charge of their parents and is unable to withdraw from their charge or to obtain the necessaries of life by reason of (

i) illness, (ii) disability, (iii) pursuit of reasonable education, or (iv) any other cause. [ 14 ] At the outset, it should be pointed out that a child who has attained the age of majority is no longer presumptively entitled to support ( Hamdan v. Hamdan , 2012 NBQB 331 ). While it is generally accepted that a child who has attained the age of majority and is pursuing post-secondary education is entitled to support, such a finding is fact-specific and requires the introduction of relevant evidence.

The onus is on the recipient parent to prove that a child who has attained the age of majority and is pursuing post-secondary education is entitled to support. In this context, the financial dependence of the child is the key element which gives rise to a parent’s support obligation. [ 15 ] In Child Support Guidelines in Canada, 2022 , authors Julien D. Payne and Marilyn A.

Payne aptly explain the need for this financial dependence for a child over the age of majority who is pursuing post-secondary education to be entitled to support: [TRADUCTION] Ce n’est pas le simple fait de poursuivre sérieusement des études qui détermine si un enfant adulte est incapable de cesser d’être à la charge de ses parents au sens de la définition d’« enfant à charge » donnée au par. 2(1) de la

Loi sur le divorce .

Le point crucial à examiner semble plutôt être le degré d’indépendance ou de dépendance financière de l’enfant du fait de la poursuite de ses études. (p. 45) [...] Une ordonnance alimentaire peut être rendue en faveur d’un enfant majeur qui ne peut être financièrement indépendant parce qu’il effectue dans une école ou un collège des études qui visent à lui donner les moyens de réussir dans la vie. (p. 46) [...] Il se pourrait ainsi qu’un enfant adulte n’ait pas droit à des aliments ou qu’il n’ait droit qu’à un montant réduit pendant ses études universitaires s’il peut subvenir à ses propres besoins grâce à l’argent qu’il gagne et à une fiducie pour l’avancement de l’éducation créée par ses parents. (p. 46) [...]

La définition d’« enfant à charge » n’est pas une question d’âge, mais une question de dépendance, et le principe directeur est celui de la raisonnabilité. [...] Le fait qu’un enfant adulte effectue des études scolaires, collégiales ou universitaires n’est pas suffisant en soi pour faire tomber l’enfant sous le coup de la définition d’« enfant à charge » figurant au par. 2(1) de la

Loi sur le divorce , à moins qu’il ne puisse, en raison de ces études, cesser d’être à la charge de ses parents ou subvenir à ses propres besoins. (p. 47) [ 16 ] Although authors Payne and Payne refer to the Divorce Act , I am of the view that their comments apply equally well to a child who has attained the age of majority under the Family Law Act .

Although the term “child” is defined differently under provincial legislation, the notion of being under the charge of one’s parents is likewise the paramount consideration in that definition. [ 17 ] I will now review the evidence adduced by the parties to determine whether R. was still a child under the charge of his parents during his final year of university studies within the meaning of

section 9 of the Act .

[ 18 ] During the summer of 2019, R. earned employment income of $10,433. He also filed another T4 showing another $1,531 in employment income. During the 2019-2020 year, R. obtained a student loan and bursary totalling $15,687. In his affidavit sworn on June 27, 2021, R. states that he only used the bursary portion, i.e. $5,942. R. thus saved the loan portion and states that he paid off the student loan in full during the 2020 year. R. also received employment insurance benefits from February to April 2020 in the amount of $4,752.

Finally, R. received a Canada Emergency Response Benefit (CERB) in the amount of $2,000 on April 15, 2020, and a tax credit (for the year 2019) in the amount of $1,737. As a result, for the 2019-2020 academic year, R. had a total of $36,140 available to support himself. Even if I subtract the amount of the student loan that he did not use, i.e. $9,745, R. still had $26,395 to cover all his expenses during the 2019-2020 year. [ 19 ] For the 2019-2020 academic year, university tuition, including insurance, amounted to $7,072.

The mother introduced in evidence monthly summaries of R’s expenses covering the period September 2019 to April 2020. She prepared these monthly summaries using R’s bank account statements. These monthly expenses include the following: rent, groceries, alcohol, haircuts, clothing, parking at the university, internet, gasoline, entertainment, restaurant expenses and various other expenses. The total amount of expenses incurred by R. from September 2019 to April 2020 is $17,161.

Accordingly, R.’s expenses for the year 2019-2020 totalled $24,233. [ 20 ] In addition to these expenses, R. states that his mother paid [TRANSLATION] “all my cell phone expenses, car expenses, as well as all my health expenses not covered by a medical plan, and many other small expenditures” (paragraph 7 of his affidavit). However, many of the supporting documents provided by the mother for these expenses show that the expenses were incurred prior to the 2019-2020 academic year. The car insurance and cell phone expenses for the period from September 2019 to April 2020 total approximately $1,800.

However, I have no explanation as to why the cell phone charges exceed $350 in one month and are only $86 in other months of the year. Even including these car insurance and cell phone expenses, R. had enough money in the 2019-2020 academic year to bear all his own expenses. [ 21 ] Furthermore, I note that, as at March 31, 2020, R. had a bank balance of $17,517.89. On April 6, 2020, R. paid a line of credit in the amount of $3,002.03. This line of credit was in the name of the father and R. and had been taken out at the beginning of R.’s post- secondary studies.

R. claims that he never used this line of credit during his studies, that towards the end of his studies he learned that it had a balance owing of more than $3,000 and that his father was only paying interest. The father testified that he used the line of credit for his own needs from March 2019 to April 2020 and acknowledged that he should have paid the balance. However, it was R. who paid the entire balance in April 2020. Thus, R. used his own funds to pay a debt owing by his father. [ 22 ] Notwithstanding this payment, R. had a bank balance of $16,772.20 on April 30, 2020.

I understand that these funds include the support paid by the father, i.e. $5,816 ($727 X 8 months), given the mother’s evidence that she transferred the support received monthly to R. However, the fact remains that R. supported himself while pursuing his university studies in 2019-2020.

He managed his financial resources so well that he even paid off a debt of $3,002 owing by his father and saved over $16,000 during his studies. [ 23 ] After consideration of the evidence received and heard, I can only conclude that R. was no longer financially dependent on his parents during his final year of study in 2019-2020 and was therefore no longer a child within the meaning of

section 9 of the Act . This is a change of circumstances giving entitlement to a variation order. [ 24 ] As a result of this change of circumstances and pursuant to subsection 22(1) of the Act , I therefore terminate the father’s obligation to support R. as of September 1, 2019.

As the father has paid the mother support for the benefit of the child in the amount of $5,816 from September 2019 to April 2020 ($727 X 8 months), this amount should be repaid to the father. [ 25 ] However, as I have stated, the mother testified that she gave the child all the monthly support payments made by the father during the 2019-2020 academic year. The child thus received $5,816. Although this money was commingled with the child’s other funds, the fact remains that the child paid, out of his own funds (including support payments), the $3,002 line of credit for which the father was responsible.

In all fairness, it seems necessary to deduct this amount from the amount repayable to the father. Otherwise, the father would, in my opinion, be doubly compensated were he to receive a full refund of $5,816 (indirectly from his son) and benefiting from the payment of his debt by his son. I therefore find that the amount repayable to the father is $2,814 ($5,816 - $3,002) on account of the termination of his support obligation as of August 31, 2019, and the payment of the line of credit.

B) MOTHER’S APPLICATION – ADJUSTMENT OF CHILD SUPPORT AND CONTRIBUTION TO SPECIAL EXPENSES [ 26 ] Pursuant to the Order, the parties must disclose their respective incomes on an annual basis and adjust the amount of child support on the basis of this reported income. Subparagraph 3.3(

c) reads as follows:

[TRANSLATION] 3.3 The parties shall review the child support and the sharing of special expenses incurred for the child in the following circumstances: [...]

c) in accordance with paragraph 4 of the order dated May 17, 2007, the parties shall continue to disclose their respective incomes as well as the child’s income on an annual basis (the income for the year 2016 shall be disclosed in May 2017 and so on) and any change in the amount of monthly support resulting from a change in the respondent’s income shall be effective as of June 1 st of each year starting in 2017 and shall be based on the previous year’s income, unless the parties otherwise agree. [ 27 ] The mother alleges that the father has never made a financial disclosure since the Order was issued, a fact that the father does not dispute.

As the Supreme Court of Canada noted in Colucci v. Colucci , 2021 SCC 24 , “the linchpin holding the child support regime together is financial disclosure.” [ 28 ] The mother seeks an adjustment of support retroactively to June 1, 2017, for which she applied on July 30, 2021 (Mother’s Affidavit solemnly affirmed on July 30, 2021, at para. 6). [ 29 ] In this case, no evidence of the father’s income for the years 2016 and 2017 was adduced before me. However, I have obtained evidence of his income for the years 2018 to 2020.

The mother did not apply for an adjournment to obtain financial information for the years 2016 and 2017, nor did she make any submissions in this respect.

Accordingly, if there is to be an adjustment of child support, it can only be made as of January 1, 2018, and must end on August 31, 2019 (given my earlier determination concerning the father’s support obligation). [ 30 ] Although the Order provides for an adjustment of support based on the previous year’s income, a court must use the best evidence it has to determine the amount of support payable, i.e. evidence of income actually earned or received in the relevant year. In this regard, I rely on the words of our Court of Appeal in Trevors v.

Jenkins , 2011 NBCA 61 , at para. 8 : […] Once a change has been found to have occurred, the court must rely on the best evidence it has to determine the amount of support payable. The Federal Child Support Guidelines set out how to determine the amount of child support payable. In Scott v.

Scott , 2004 NBCA 99 , 278 N.B.R. (2d) 61 , Richard J.A. states: The governing principles for the determination of income for the purposes of child support are set out in ss. 16 - 20 of the Federal Child Support Guidelines subject to the interpretive rule set out in s. 2(3) that “the most current information must be used.” [para. 35] [ 31 ] The evidence introduced at the hearing shows that the father earned the following income in 2018 and 2019: 2018: $84,708 less $867 (union dues) = $83,841 2019: $88,269 less $875 (union dues) = $87,394 [ 32 ] According to the Order, the father’s child support obligation to R. was based on an income of $83,160.

The Order required adjustment of child support on an annual basis , but this was not done. In J.C.M. v. M.J.M. , 2018 NBCA 42 , our Court of Appeal strongly urges an annual review of child support to ensure that it complies with the objectives of the Federal Child Support Guidelines , SOR/97- 175 : 46 Child support is subject to annual review. As incomes change, so should the amount payable under the Guidelines .

Although the Guidelines do not specifically require spouses to exchange copies of their filed income tax returns and Notices of Assessment on an annual basis, unless court ordered, or agreed, it is highly desirable to ensure the child support is paid in compliance with the objectives of the Guidelines (see s. 1). [ 33 ] A court has the discretion to retroactively increase child support and to decide the date from which it should retroactively apply by applying the four factors set out in D.B.S. v. S.R.G. ; L.J.W. v. T.A.R.; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 , and

reconsidered in Michel v. Graydon, 2020 SCC 24, namely: (

a) the fact that the recipient parent delayed seeking an order for childsupport; (

b) the conduct of the payor parent; (

c) the circumstances of the child; and (

d) the hardship that a retroactive award might entail.Typically, the date of retroactivity is the date of “effective notice”, i.e. the date on which the recipient parent broached the issue ofincreased child support (D.B.S. at para. 121). On the other hand, the payor parent’s blameworthy conduct may persuade a court to set thedate of retroactivity on the date of the payor parent’s increase in income.

In Colucci, the Supreme Court of Canada elaborated on theconcept of blameworthy conduct as follows: 40 In a significant caveat to these general rules, Justice Bastarache added that the date of the payor’s increase in income maysometimes be a more appropriate date of retroactivity, particularly where the payor engages in “blameworthy conduct” (para. 124). Suchconduct includes the payor’s failure to disclose material increases in income.

At para. 124, Bastarache J. said: Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of childsupport payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date ofretroactivity back to the time when circumstances changed materially.

A payor parent cannot use his/her informational advantage tojustify his/her deficient child support payments. 41 Since D.B.S., various courts have accepted and acted upon the principle that failing to disclose an increase in income isblameworthy conduct justifying variation to the date of the change (C. (M.) v. O. (J.), 2017 NBCA 15, 93 R.F.L. (7th) 59, at para. 37;Goulding v. Keck, 2014 ABCA 138, 42 R.F.L. (7th) 259, at para. 44; Brear, at para. 74, per Pentelechuk J.A.; Burchill v. Roberts,2013 BCCA 39, 41 B.C.L.R. (5th) 217, at paras. 29-30; Greene v.

Greene, 2010 BCCA 595, 12 B.C.L.R. (5th) 330, at para. 73;Carlaw v. Carlaw, 2009 NSSC 428, 299 N.S.R. (2d) 1, at paras. 23-25; Damphouse v. Damphouse, 2020 ABQB 101, at para. 72). “Blameworthy conduct”, as that concept has developed in the cases, does not simply extend to the most egregious cases ofdeception or intentional evasion, like this case.

It may also extend to cases of mere passivity and “taking the path of least resistance”(Burchill, at para. 30). 42 Most recently, in Michel, my colleague Brown J. (speaking for the Court on this point) confirmed that “the date of effectivenotice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness)”,including failure to disclose material information (para. 36; see also para. 33). Payor parents are “subject to a duty of full and honestdisclosure” (para. 33).

Where the payor fails to comply with this duty and leaves the recipient unaware of increases in income, aretroactive award “will commonly be appropriate” because non-disclosure “eliminates any need to protect [the payor’s] interest in thecertainty of his [or her] child support obligations” (paras. 32 and 34). 43 In practice, then, the date of retroactivity is frequently adjusted to align with the date of the material increase in income, despitethe “general rule” of varying to the date of effective notice in D.B.S. (para. 118).

It would be “untenable to suggest that a parent who failsto provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought acourt application” (Brear, at para. 74, per Pentelechuk J.A.). Further, even where the payor has disclosed increases in income, the D.B.S.factors may support extending a retroactive increase of support back to the time of the change in income. (Emphasis added.) [34] In this case, I believe the father chose passivity by not disclosing his income information on an annual basis.

He saw his incomeincrease, but failed to fulfill his obligation to support his son. Moreover, there was an order requiring the father to make a financialdisclosure on an annual basis and to make the necessary adjustment to the amount of child support on an annual basis. Accordingly, Ifind that the father has engaged in blameworthy conduct and, because of that, I make the order retroactive to January 1, 2018. [35] Based on the 2017 New Brunswick table (one child) in the Guidelines and the father’s annual income, the father should havepaid $732 per month in child support in 2018 and $763 per month in 2019.

Accordingly, the father incurred arrears totalling $348,calculated as follows: 2018: $732 - $727 = $5 X 12 months = $60 2019: $763 - $727 = $36 X 8 months = $288 [36] The mother is also seeking a contribution from the father towards two special expenses incurred for the child, namely the cost oforthodontic treatment and the purchase of a computer. The mother notified the father of her request for contribution towards theorthodontic treatment on June 27, 2021, by way of her affidavit. As for the computer, the mother notified the father of her request for acontribution in August 2019.

[ 37 ] The evidence shows that the child started orthodontic treatment in September 2018. The treatment was recommended because the child had a class III malocclusion. The treatment cost $5,100 (Exhibit 3 to the mother’s affidavit solemnly affirmed on June 27, 2021). [ 38 ] Under the Order, the parties must share equally any expenses not covered by a medical or dental plan. The father does not dispute the orthodontist’s recommendation nor the cost of the treatment. In the course of his testimony, he chose not to say anything about this request for a contribution to the orthodontic treatment.

I also note that in 2018, the father decided to cancel his medical and dental plan coverage for the benefit of his son without notifying the mother. [ 39 ] In my view, the father was well aware of this orthodontic treatment for the child and chose to ignore his financial responsibility in this regard. Knowing that his son was no longer covered by his medical and dental plan, the father should have known that he would be called upon to contribute to this expense.

I therefore allow the mother’s claim, and the father must reimburse the mother $2,550 for this orthodontic treatment. [ 40 ] In February 2019, the mother purchased a computer for the child, for which she paid $1,800. In August 2019, the mother asked the father to contribute to the purchase of the computer. The father alleges that he did not know his son needed a computer in February 2019 and that, even if a new computer was needed, the computer should not have cost more than $1,000 or $1,100.

The father adds that the computer purchased for the child was more expensive than necessary in order to allow the child to play games on it. [ 41 ] I accept that the purchase of a computer was needed for the child to pursue his university education. The father did not satisfy me that $1,800 was an excessive cost for this purchase. [ 42 ] However, I cannot accept this request for a contribution to the purchase of the computer, as the order provided a formula for sharing this type of special expense (see paragraph 3.2).

I do not have all the elements to apply the formula for the 2018-2019 academic year and calculate the portion that the father should pay. [ 43 ] As a result, the father owes the mother a total of $2,898 in child support arrears and contribution to the orthodontic treatment. CONCLUSION AND COSTS [ 44 ] According to my analysis, the parties owe each other an almost identical amount. Accordingly, I find that neither party owes the other anything. [ 45 ] Each party has been successful in part and will therefore bear their own costs.

DATED at Moncton, New Brunswick, this 5 th day of December 2022. _______________________________________ Madam Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick