2015 NBCA 23, 2015 NBCA 23

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 58-13-CA L.P.S. APPELLANT L.P.S. APPELANT - and - - et - M.S.F. RESPONDENT M.S.F. INTIMÉE L.P.S. v. M.S.F., 2015 NBCA 23 CORAM: The Honourable Justice Quigg The Honourable Justice Green The Honourable Justice Baird L.P.S. c.

M.S.F., 2015 NBCA 23 CORAM : l’honorable juge Quigg l’honorable juge Green l’honorable juge Baird Appeal from a decision of the Court of Queen’s Bench: May 17, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 17 mai 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 168 Décision frappée d’appel : 2013 NBBR 168 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 10, 2015 Appel entendu : le 10 février 2015 Judgment rendered: April 23, 2015 Jugement rendu : le 23 avril 2015

Reasons for judgment: The Honourable Justice Baird Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Counsel at hearing: For the appellant: Kenneth W. Martin M.S.F. appeared in person Motifs de jugement : l’honorable juge Baird Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Avocats à l'audience : Pour l’appelant : Kenneth W. Martin M.S.F. a comparu en personne THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by BAIRD, J.A. I.

Introduction [ 1 ] L.P.S. appeals an order granting child support for a “child of the marriage” who had attained the age of majority pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2nd Suppl.). For the following reasons, I would dismiss the appeal. II. Background [ 2 ] L.P.S. (the father) and M.S.F. (the mother) were married in 1986. There are three children of the marriage, the youngest being H., born in 1992. A divorce judgment issued effective March 6, 2009.

The mother was granted custody of the children, and the father was ordered to pay child support for H. at the rate of $533.00 monthly, based on his assessed income at that time of $61,500. The order required payment through the Family Support Orders Service. [ 3 ] In September 2010, at the age of 17 years, H. commenced her post-secondary education at the University of New Brunswick. As she is a member of a First Nations Community, her tuition, residence fees, and books were paid by the Band

Administration, along with an allowance for travel to and from her home twice yearly. [4] On May 31, 2011, the father filed a Notice of Motion seeking a termination of child support on the basis thatH. was no longer a “child of the marriage” as defined in the Act. He also sought an order retroactively assessing any overpayment ofchild support. [5] The father purported the mother did not require child support as H. was living with her boyfriend, wasattending university with her expenses fully paid, and had attained the age of majority. Relying on Simon v.

Adey, 2012 NBCA 63, 391N.B.R. (2d) 189, at para. 16, he submitted that the mother’s living expenses were fully paid by the “Band”, thus eliminating the need forsupport. [6] The motion judge identified two distinct time periods: from the beginning of H.’s post-secondary education tothe age of majority, and the period thereafter. She concluded H. remained a child of the marriage until she reached the age of majority,and the order was not varied prior to that date. Counsel for the father conceded this point during the appeal hearing, so this ground wasmoot.

The table amount of child support was payable until H.’s 19 birthday in 2011. [7] The father submitted his child support obligation should have terminated when H. attained the age of 19years, or, alternatively, should have been reduced to $40.00 weekly from May to August, the period when she resided at home.

Theamount of $40.00 was based on an arbitrary payment the mother requested from H. when she was living at home, to help coverhousehold expenses, and was intended to offset the added expense of having her boyfriend there. [8] The motion judge found H. continued to be a child of the marriage due to the fact she was enrolled full time asa university student, and concluded the table amount of support for H. “after she turned 19 was neither inappropriate nor unsuitableconsidering the overall circumstances of this case.

Neither was it excessive even if her university fixed cost expenses are paid by theBand” (para. 42). [9] The father appeals that decision and submits that the full table amount of child support is “inappropriate”given the “condition, needs, means and other circumstances” of H., relying on s. 3(2) of the Federal Child Support Guidelines. As acorollary, he submits the motion judge erred in failing to consider the “condition, needs and means” of the mother when she ordered thecontinuation of the full table amount of child support. III. Analysis [10] The variation motion was filed pursuant to s. 17 of the Act.

For ease of reference, the

section is appended asschedule “A”. [11] On a motion to vary child support, the onus is on the moving party to prove there has been a material change inthe “condition, needs, means and other circumstances of a spouse or a child of the marriage such that the original order is no longerappropriate”. Material change has been defined as a change not contemplated by the parties or the court, and which would have led to adifferent result had it been known at the time of the original order: Willick v. Willick, (SCC), [1994] 3 S.C.R. 670,[1994] S.C.J. No. 94 (QL).

In other words, a variation motion is not a trial de novo. A. Standard of appellate review [12] It is trite to say this Court will give considerable deference to the decision of a trial judge in matters of support.In Pollock v. Rioux, 2004 NBCA 98, 278 N.B.R. (2d) 351, at para. 28, we adopted finding in Fletcher v. Keilty, 2004 NBCA 34, 269N.B.R. (2d) 302 that the standard of appellate review is the same for child support as it is for spousal support.

[13] This same principle was stated in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999]S.C.J. No. 9 (QL), at paras. 10-12: Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error inprinciple, a significant misapprehension of the evidence, or unless the award is clearly wrong. These principles were stated by MordenJ.A. of the Ontario Court of Appeal in Harrington v. Harrington (1981), (ON CA), 33 O.R. (2d) 150, at p. 154, andapproved by the majority of this Court in Pelech v. Pelech, (SCC), [1987] 1 S.C.R. 801, per Wilson J.; in Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813, per L’Heureux-Dubé J.; and in Willick v. Willick, (SCC), [1994] 3 S.C.R.670, at p. 691, per Sopinka J., and at pp. 743-44, per L’Heureux-Dubé J. [para. 11] This Court has reiterated this standard in D.E. v. L.E., 2014 NBCA 67, [2014] N.B.J. No. 289 (QL), at para. 6; T.D.L. v. A.L., 2014NBCA 57, 423 N.B.R. (2d) 359, at para. 22; Brooks v. Brooks, 2014 NBCA 29, 419 N.B.R. (2d) 326, at para. 9; and Savoie v. MacNeill,2015 NBCA 11, [2015] N.B.J. No. 54 (QL), at para. 3. Unless she made erroneous findings of fact, or misapplied the law, deference isowed to the motion judge’s decision.

B. Definition of child of the marriage [14] S. 2(1) of the Divorce Act states: “child of the marriage” « enfant à charge » “child of the marriage” means a child of twospouses or former spouses who, at thematerial time, (

a) is under the age of majority and who hasnot withdrawn from their charge, or (

b) is the age of majority or over and undertheir charge but unable, by reason of illness,disability or other cause, to withdraw fromtheir charge or to obtain the necessaries oflife; « enfant à charge » “child of the marriage” « enfant à charge » Enfant des deux époux ouex-époux qui, à l’époque considérée, setrouve dans une des situations suivantes :

a) il n’est pas majeur et est à leur charge;

b) il est majeur et est à leur charge, sanspouvoir, pour cause notamment de maladieou d’invalidité, cesser d’être à leur charge ousubvenir à ses propres besoins. [15] Whether an adult child still qualifies as a child of the marriage is fact dependent. There are no hard and fastrules. In C.C.M. v. A.D.M. (1994), (NB CA), 148 N.B.R. (2d) 176, [1994] N.B.J.

No. 220 (C.A.) (QL), our Courtdecided a child of any age may continue to be a child of the marriage, depending on the circumstances, and each case must bedetermined on its own unique set of facts, bearing in mind the objectives of s. 15 of the Divorce Act: It is my opinion that a child of any age may, depending on the circumstances, be a "child of the marriage" while seriously pursuing his orher education. There is no arbitrary age at which a child ceases to be a "child of the marriage" under the Divorce Act.

Such adetermination, which often will be self-evident, must be made in each instance. [para. 27] [16] In other words, a court cannot deviate from the Guidelines simply because a child has reached the age ofmajority. S. 3(1) of the Guidelines applies after the age of majority is reached, with a deviation permitted pursuant to s. 3(2). Thisrequires the court to conduct an analysis of the “condition, means, needs and other circumstances” of the child, and the financial abilityof each parent to contribute to the support of the child. [17] A payor who seeks to exclude the application of s. 3(2)(

a) of the Guidelines has the onus to prove the tableamount is “inappropriate” once the child has been determined to remain a child of the marriage: Rebenchuk v Rebenchuk, 2007 MBCA22, [2007] M.J. No. 130 (QL), at para. 64; M.V. v. D.V., 2005 NBQB 412, 296 N.B.R. (2d) 275; and W.P.N. v B.J.N., 2005 BCCA 7,[2005] B.C.J. No. 12 (QL).

[18] The fact that a child receives third party assistance with the payment of their post-secondary education is alegitimate consideration when assessing parental contribution towards the eligible s. 7(

e) expenses under the Guidelines, but is notnecessarily relevant to the analysis pursuant to s. 3(1). This

section requires the trier of fact to apply the table amount, firstly, andsecondly to add the applicable share of s. 7 expenses. If this approach is deemed “inappropriate”, the court may exercise a discretionarydeviation pursuant to s. 3(2)(b). The legislation does not specify the applicable criteria; however, a deviation is considered to be“exceptional”: Lewi v. Lewi, (ON CA), [2006] O.J. No. 1847 (C.A.) (QL), at para. 129 and Rebenchuk v. Rebenchuk,at para. 28. [19] In Pollock v. Rioux, Richard J.A. adopted and applied the analysis in Francis v. Baker, (SCC), [1999] 3 S.C.R. 250, [1999] S.C.J.

No. 52 (QL) at paras. 37-40. The word “inappropriate” was broadly defined and there must beclear and compelling evidence to convince the trier of fact a deviation is warranted in the circumstances of the case. In the absence ofsuch evidence, the trier of fact should not deviate from the table amount.

This same principle was applied by Green J.A. in Simon v.Adey. [20] In this case, the motion judge concluded H. continued to be a child of the marriage following her 19th birthday;her mother’s home was her primary residence, she was not able to withdraw from parental control and she required financial assistance.The judge found the mother assisted H. with car repairs, grocery and living expenses, clothing purchases, and provided her with “carepackages”.

The motion judge further found the mother provided this support from her limited means, and without the child supportpayments that were withheld by the enforcement officer at the request of the father’s counsel commencing in December 2010 (seediscussion below). These facts were not disputed by the father. [21] The motion judge concluded the mother maintained a “household” for H. This conclusion was independentlycorroborated. At para. 28 of the decision, the judge stated the mother “continued to provide financially for H., both at home and while[she] was at university”.

She correctly concluded the father did not rebut the application of the presumptive rule (para. 41). [22] Having determined the table amount was appropriate, the motion judge adjusted the child support amounts toreflect the increases in the father’s income as well as the changes to the table amounts effective January 1, 2012. I find no reason forappellate intervention respecting the calculations. C.

M.S.F.’s condition, means, needs and other circumstances [23] The father asserted the motion judge erred in not considering the “condition, means, needs and othercircumstances” of the mother when determining whether the table amount was “inappropriate”. [24] The third ground of appeal was not specifically addressed by the motion judge; however, I find she made noreversible error in failing to do so in her decision. Once the motion judge concluded the moving party failed to rebut the presumptivetable amount, and that it was not “inappropriate”, an analysis pursuant to s. 3(2)(

b) was not necessary. D. Letter to FSOS [25] At this juncture, a comment on the withholding of support payments by the enforcement office is warranted.There was uncontradicted evidence the mother ceased receiving support payments for H. sometime after November 2010. By letter datedDecember 6, 2010, prior to filing the Notice of Motion, counsel for the father advised the Family Support Orders Service there would bea Consent Order forthcoming, and he requested they withhold all child support payments made by the father until the order wasprocessed.

As a result, the enforcement officer withheld all child support payments from December 2010 until the last day of the hearingin 2012, when the motion judge ordered an interim disbursement of funds pending her written decision.

[ 26 ] I am unable to find authority permitting an enforcement officer to unilaterally vary or disregard a court order in such a fashion. The motion judge rightfully commented on this practice in her decision: “Mr. [S] cannot be excused for having caused this letter to be forwarded to the Director nor can the Director be excused for withholding the payments” (para. 48). I agree. The withholding of payments by an enforcement officer can only be achieved by judicial order. IV. Disposition [ 27 ] I find the motion judge made no reversible error either in fact or in law.

I would dismiss the appeal without costs. __________________________ BARBARA L. BAIRD, J.A. WE CONCUR: ___________________________ KATHLEEN A. QUIGG, J.A. ___________________________ BRADLEY V. GREEN, J.A. APPENDIX A /

ANNEXE A S. 17 of the Divorce Act

(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. Art. 17 de la

Loi sur le divorce

(4) Avant de rendre une ordonnance modificative de l’ordonnance alimentaire au profit d’un enfant, le tribunal s’assure qu’il est survenu un changement de situation, selon les lignes directrices applicables, depuis que cette ordonnance ou la dernière ordonnance modificative de celle-ci a été rendue.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

(6.1) Le tribunal qui rend une ordonnance modificative d’une ordonnance alimentaire au profit d’un enfant la rend conformément aux lignes directrices applicables.

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

(6.2) En rendant une ordonnance modificative d’une ordonnance alimentaire au profit d’un enfant, le tribunal peut, par dérogation au paragraphe (6.1), fixer un montant différent de celui qui serait déterminé conformément aux lignes directrices applicables s’il est convaincu, à la fois :

a) que des dispositions spéciales d’un jugement, d’une ordonnance ou d’une entente écrite relatifs aux obligations financières des époux ou au partage ou au transfert de leurs biens accordent directement ou indirectement un avantage à un enfant pour qui les aliments sont demandés, ou que des dispositions spéciales ont été prises pour lui accorder autrement un avantage;

b) que le montant déterminé conformément aux lignes directrices applicables serait inéquitable eu égard à ces dispositions.

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

(6.3) S’il fixe, au

titre du paragraphe (6.2), un montant qui est différent de celui qui serait déterminé conformément aux lignes directrices applicables, le tribunal enregistre les motifs de sa décision.

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

(6.4) Par dérogation au paragraphe (6.1), le tribunal peut, avec le consentement des époux, fixer un montant qui est différent de celui qui serait déterminé conformément aux lignes directrices applicables s’il est convaincu que des arrangements raisonnables ont été conclus pour les aliments de l’enfant visé par l’ordonnance.

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

(6.5) Pour l’application du paragraphe (6.4), le tribunal tient compte des lignes directrices applicables pour déterminer si les arrangements sont raisonnables. Toutefois, les arrangements ne sont pas déraisonnables du seul fait que le montant sur lequel les conjoints s’entendent est différent de celui qui serait déterminé conformément aux lignes directrices applicables.