Docket: 1708 Calvin George Geran Appellant - v. -, 2011 SKCA 55

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 55 Date: 20110511 Between: Docket: 1708 Calvin George Geran Appellant - and - Brenda Lee Geran Respondent Coram: Cameron, Smith, and Herauf JJ.A. Counsel: R. Bradley Hunter, Q.C. for the Appellant James J. Vogel for the Respondent Appeal:

From: 2008 SKQB 460 Heard: March 15, 2011 Disposition: Allowed in part Written Reasons: May 11, 2011 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Madam Justice Smith The Honourable Mr. Justice Herauf CAMERON J.A. [ 1 ] This is an appeal of an order made in the Court of Queen’s Bench, Family Law Division, by Mr Justice McIntyre, varying a pre- existing child support order. Acting on the authority of

section 17 of the Divorce Act [1] he ordered the child’s father, Calvin Geran, to pay to her mother, Brenda Geran, the amount of $843 per month for the support of the child in accordance with section 3(2)(

a) of the Federal Child Support Guidelines . [ 2 ] The child was 21 years old at the time of the hearing and was attending university, living with her mother, and employed part-time. She had earlier been attending university, while living on her own and working full-time, but was unable to cope and withdrew for a year. She then returned to university, moved back in with her mother, and began working part-time. [ 3 ] The appeal was taken by Mr Geran on the alternative grounds Justice McIntyre erred: 1. In finding him liable under the Divorce Act to contribute to the support of the child in these circumstances. 2. In ordering him to pay support in an amount determined under subsection 3(2)(

a) of the Federal Child Support Guidelines, rather than subsection 3(2)(b). [ 4 ] For the reasons that follow, I would dismiss the first ground of appeal but give effect to the second and adjust the amount accordingly. 1. The finding that Mr Geran was liable to contribute to the child’s support [ 5 ] The question here is whether, in making this finding, Justice McIntyre erred in principle, failed to have proper regard for the facts, or otherwise went wrong. Hence, the question falls to be addressed in the light of the framework of principle governing the matter, the material facts, and the bases upon which Mr Geran challenged the finding on appeal.

(1) The Framework of Principle [ 6 ]

Section 15.1 of the Divorce Act empowers the Court of Queen’s Bench to order a divorcing or divorced parent “to pay for the support of any or all children of the marriage”.

Section 17 goes on to empower the Court to vary, suspend, or rescind a child support order on a change of circumstances. These provisions are primarily concerned with the support of children under the age of majority, though to a limited extent they are also concerned with the support of children over the age of majority. In either case, their purpose (as identified by Caldwell J.A. speaking for this Court in Ethier v.

Skrudland 2011 SKCA 17 ), is this: [14] Parliament introduced the child support provisions of the Divorce Act to directly address the goal of ensuring that divorced parents provide the same degree of support to "children of the marriage" as the parents might have done had the marriage continued.

[7] Thus, the object of these child support provisions, both as they apply to children under the age of majority and as they may apply tochildren over the age of majority, is to ensure so far as reasonably possible that children of the marriage are not disadvantaged inconsequence of the separation and divorce of their parents. The object merits close attention in the context of children over the age ofmajority. Closer attention than usual.

There are two reasons for this. [8] First, a child who has attained the age of majority is no longer presumptively entitled to parental support and, in consequence, theparents have only a potential obligation to support the child rather than a fixed obligation as in the case of a child who has not attainedthe age of majority.

That being so, when support is sought for a child over the age of majority, an inquiry into the existence and, if needbe, the extent of the obligation is necessary to the end of achieving the object. [9] Second, the object implies that the inquiry into the existence and, if need be, the extent of this obligation is driven to a significantextent by the standard of the reasonable parent whose marriage and marital relationship remains intact.

This is so because the object isconcerned with ensuring that a child over the age majority receives much the same parental support as he or she would have received butfor the separation and divorce of the parents. [10] It is essential, then, to keep the object of these provisions in clear view when addressing the question of whether divorced parents ofa child over the age of majority are obliged to support the child and, if so, the extent to which they are obliged to do so. [11] Turning from the object of these provisions to their operation, they operate to empower the Court of Queen’s Bench to make or varya child support order in relation to a child over the age majority if, generally speaking, the parent who applies to the Court for the order isable to establish on a balance of probabilities that the child remains dependent upon the parents: Ethier v.

Skrudland. (See, too, Smith v. Smith, 2008 SKCA 141, 59 R.F.L. (6th) 280). [12] More particularly, the parent who applies for the support order must establish that the child, though an adult, nevertheless remains a“child of the marriage” within the meaning of subsection 2(1)(

b) of the Divorce Act. This subsection reads thus: 2(1) In this Act “child of the marriage” means a child of two spouses or former spouses who, at the material time, (a) … (

b) is of the age of majority or over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw fromtheir charge or to obtain the necessaries of life. [13] The phrase “at the material time” has been construed to mean at the time of application, so it is the situation of the child at that timethat counts: Harrington v. Harrington (1981), (ON CA), 22 R.F.L (2d) 40 (Ont. C.A.); Chartier v. Chartier (SCC), [1999] 1 S.C.R. 242 at p. 259; and D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231.

As for the “age of majority”,it is 18 in Saskatchewan. [14] We are not here concerned with whether at the time of the application the child, who was then 21, was unable to withdraw from thecharge of her parents by reason of “illness” or “disability”, as contemplated by subsection 2(1)(b), but by reason of “other cause”,namely her attendance at university. [15] The pursuit of post-secondary education by an adult child of divorced parents is capable in principle of constituting “other cause”within the meaning of subsection 2(1)(b).

The Supreme Court of Canada made this clear many years ago in the case of Jackson v.Jackson, (SCC), [1973] S.C.R. 205. This is not to say that the parents are automatically obliged by law to support thechild. Much depends on the circumstances of the particular case, as pointed out in Jackson v. Jackson, including the circumstances of thechild, for the key to the legal obligation of the parents lies in the child being “unable to withdraw from their charge”.

This phrase may betaken in this context to mean unable without the direct or indirect financial assistance of the parents to pursue a reasonable course ofpost-secondary education to the end of bettering the future prospects of the child. [16] This is a form of exceptional dependency, exceptional in the sense parents are not ordinarily obliged to support healthy and able-bodied adult children capable of earning a living on their own.

And the legal obligation of divorced parents to do so, in the case of anadult child pursuing post-secondary education, is an exceptional obligation, exceptional in the sense parents whose marriage and maritalrelationship remain intact have no such obligation. True, the latter often undertake out of a sense of responsibility to assist children topursue post–secondary education, depending on the financial and other circumstances of the family as a whole. But theirs is a moral nota legal obligation.

[17] The significance of this, having regard for the object of the child support provisions of the Act, is that Parliament may be presumedto have intended to convert this moral obligation into a legal obligation upon divorce. As noted by the Manitoba Court of Appeal in Newman v. Thompson, (MB CA), [1997] 9 W.W.R. 519, 30 R.F.L. (4th) 143: [16] …. An order of child support for an emancipated child can only be justified as a means of requiring one parent to share theresponsibility of educating a child who, but for the divorce, would have continued to receive the support of both parents.

What this suggests is that the question of whether divorced parents are obliged to contribute to the support of an adult child in universityshould be approached from the general perspective of reasonable parents whose marriage and marital relationship remain whole. [18] More particularly, this suggests that these cases should be approached from the perspective of reasonable parents who, out ofparental affection and a sense of moral responsibility, are prepared to assist a child in the early stages of adulthood to pursue post-secondary education depending upon the financial and other circumstances of the parents, of the particular child, and of the family as awhole, bearing in mind that the object of the child support provisions of the Divorce Act is not to advantage an adult child of divorcedparents but to guard against disadvantage resulting from the breakdown of the marriage. [19] Thus in Bradley v.

Zaba (1996), (SK CA), 18 R.F.L (4th) 1, this Court set out a number of considerations to betaken into account when responding to the question of whether an adult child of divorced parents is “unable to withdraw from theircharge” by reason of pursuing post-secondary education. Speaking for the Court in that case Gerwing J.A. said this: [10] . . .

This question requires the Court to consider many factors including: whether the child is eligible for student loans or otherfinancial assistance, whether the child has reasonable career plans, the ability of the child to contribute to his or her own support throughpart-time employment, parental plans for the child's education, particularly those made during cohabitation, and at least in the case of amature child who has reached the age of majority, whether or not the child has unilaterally terminated his or her relationship with theparent from whom child support is sought.

A further consideration is whether the child could have reasonably expected one or both ofthe parents to have continued to furnish support if the marriage had not broken down. [20] The Ontario Court of Appeal adopted a similar set of considerations in Whitton v. Whitton (1989), (ON CA), 21R.F.L (3d) 261 at p. 263: …[T]he proper instruction is that given by Fleury L.J.S.C. in Law v.

Law (1986), (ON SC), 2 R.F.L. (3d) 458 at 462: … In determining what is appropriate in each case, a court might have to consider the age of the child, his or her ability, his or her pastperformance in previous courses, his or her determination to assist with study costs through summer employment, the means of thepaying spouse and any obligation to provide for the education of other children, the plans of the parents generally with respect of furthereducation of their children especially where these plans were formulated jointly by the spouses during cohabitation, the appropriatenessof the course selected to generate future employment and also the "conduct of the parties and the condition, means and circumstances ofeach of them".

Other appellate courts have done likewise: Darlington v. Darlington (1997), (BC CA), 99 B.C.A.C. 134, 32 R.F.L. (4th) 406; Olson v. Olson, 2003 ABCA 56, 36 R.F.L. (5th) 196; and Rebenchuk v. Rebenchuk, 2007 MBCA 22, 35 R.F.L. (6th) 239. [21] These several cases, beginning with Bradley v. Zaba, serve in effect to establish a number of indicia to be considered by the courtsin determining whether an adult child is unable without the direct or indirect financial assistance of the parents to pursue a reasonablecourse of post-secondary education to the end of bettering the future prospects of the child.

As the subject suggests, the indicia concernthe reasonableness of the decision to pursue an advanced education, the reasonableness or otherwise of the child’s expectations relativeto the reasonable parent, the needs and means of the child, and the situation of the parents. The indicia are these: (

i) The age, existing qualifications, and experience of the child, bearing in mind that what is of concern here is a reasonable planof post-secondary education to better secure the future prospects of the child.

As these matters vary, the child’s ability or inability towithdraw from the charge of the parents is likely to vary. (ii) The aptitude and ability of the child, along with the child’s level of maturity and commitment, including his or her sense of responsibility and prudence. (iii) The nature and quality of the child’s post-secondary education and career plan, including the duration of the period of study, theprospects of success, the potential benefit, and the associated cost. (iv) The extent of the child’s ability and willingness to meet the associated cost, whether through educational savings plans, savings in general, other available funds, employment, student loans, scholarships and bursaries and grants, or otherwise. (

v) The willingness of the child to remain reasonably accountable to the parents in relation to his or her plans. A child who is unwilling to do so, or who unilaterally and without justification terminates the parental relationship, may be expected to encounter difficulty in nevertheless suggesting that he or she is unable to withdraw from the charge of the parents by reason of

pursuing a reasonable course of post-secondary education. (vi) The plans or expectations that the parents may have had in mind in relation to the post-secondary education of their child, oreach of their children, bearing in mind that reasonable parents are ordinarily concerned to treat each of the children comparatively equally. (vii) The means and needs and other circumstances of the parents, including the family responsibilities customarily born by reasonable parents. (viii) Such other circumstances as may be relevant to the matter. [22] The fourth of these (the ability and willingness of the child to meet the associated cost), merits comment in light of what this Courtsaid of the matter in Hagen v.

Rankin, 2002 SKCA 13, 24 R.F.L. (5th) 38. Referring to Bradley v. Zaba, the Court said this: [9] In Zaba, this Court held that in determining whether a child, who has reached the age of majority and is attending university,continues to be “a child of the marriage” and, if so, the extent of the legal obligation of each of the parents to contribute to the support ofthe child, the court should have regard, among other considerations, for the ability of the child to contribute to his or her own supportthrough part-time employment.

As this clearly implies, and as the Court of Queen's Bench has occasionally held, such children areexpected to contribute to their own support to the extent reasonably possible before looking to their parents and their parents' exceptionallegal obligation to continue to provide support while adult children attend university and are, for that reason alone, unable to get by ontheir own. (See, for example, Simpson v. Palma (1998), (SK KB), 171 Sask. R. 89 (Sask Q.B., per Zarzeczny J.) and Meyers v. Meyers [1998] S.J.

No. 265 (Sask Q.B., per Dovell J.) [emphasis added] [23] There is another of these indicia that merits comment, namely the seventh (the means, needs, and other circumstances of theparents).

Considerations such as these are obviously relevant when the marriage and marital relationship of the parents remain wholeand, given the object of the child support provisions of the Divorce Act, they should be no less relevant when the parents are divorced,relevant that is to what an adult child pursing post-secondary education might reasonably expect of a reasonable parent in thecircumstances of the particular case. [24] These, then, are the main lines of principle Justice McIntyre was called upon to apply to the facts of the case when determining ifMr Geran was liable to contribute to the support of the child.

(2) The Facts of the Case [25] The child graduated from High School in June of 2005 at the age of 19. She was then living with her mother in Regina. Her motherand father, who had separated when she was only six weeks old, were long since divorced. He had moved to Strathmore, Alberta and hadnot seen the child over the years, except on the odd occasion, and had had no communication with her. He had, however, contributed toher support throughout, as required by court order.

At the time of her graduation he was paying her mother the mutually agreed amountof $341 per month for her support. [26] Shortly after she graduated from High School in 2005 she enrolled in the Faculty of Arts, University of Regina, as she had longintended to do. Her goal was to obtain a degree in psychology and, if all went well, to join the Regina Police Service. She was a qualifiedlifeguard, and lifeguard instructor, and upon entering university she obtained full-time employment with the City of Regina in thatcapacity and then left the home of her mother to live on her own.

Over the course of 2005 she earned $25,600. As of the end of the yearher father was relieved by mutual agreement of her parents of having to make further support payments [27] As it turned out, she was incapable of handling the demands of both her studies and her work. In consequence, the Universityplaced her on academic probation at the end of her first semester in late December of 2005. Then, at the end of the next semester, in lateApril of 2006, the University required her to withdraw. It required her to do so for at least two semesters.

At that, she withdrew,continued to live on her own, and went on working full-time as a lifeguard and lifeguard instructor, but with the intention of returning tothe University at the first opportunity. As at the end of that year, namely 2006, she had earned $30,002. [28] Going into 2007, she continued to live on her own and work full-time. She did so until the end of the summer, when the Universityallowed her to return and resume her studies. It allowed her to do so on condition she enrol in a limited number of classes, a conditionbased on the understanding she would work no more than 20 hours per week.

Still, she was classed as a full-time student. She thenmoved in with her mother, began attending classes, and reduced her work load. Over the course that year, namely 2007, she earned$32,267. [29] Anticipating the child’s return to university in the fall of 2007, Mrs Geran asked Mr Geran to resume his support payments for theirdaughter. He agreed to do so, and sent Mrs Geran a series of post-dated cheques in the amount, as before, of $341 per month. She refused

to accept them and then, on December 19, 2007, launched the proceedings that led to the order under appeal. [ 30 ] At the time of the hearing the child was 21, living with her mother, attending university, and employed part-time. Her mother was providing her with food and lodging and by then her academic performance had picked up appreciably.

She remained intent on obtaining a degree in psychology and, if all went well, to join the Regina Police Service. [ 31 ] The cost of tuition, fees, and books amounted to between $3,500 and $4,000 per year, and she expected to earn approximately $12,000 per year, working part-time, or about 15 hours a week, primarily as a lifeguard or lifeguard instructor. She was providing her own transportation (with the use of her mothers’ car), and was providing for her own clothing, incidentals, recreation, and so on.

She had no savings to speak of, and she had not applied for a student loan, apparently thinking that her parent’s incomes precluded obtaining student loans. Her father was then earning $95,802 per year and her mother $67,189.

(3) The Finding in Issue [ 32 ] On these facts, Justice McIntyre found that as of the date of the hearing the child was “a child of the marriage” within the meaning of subsection 2(1) (

b) of the Divorce Act and that her father was therefore liable to contribute to her support. [ 33 ] As his reasons for judgment disclose, he was generally alive to the framework of principle governing the issue of whether she was “a child of the marriage.” More particularly he was alive to the need to assess her situation as at the time of the application and to have regard for the considerations set out in Bradley v. Zaba and expanded upon in such cases as Darlington v. Darlington , Olson v. Olson , and Rebenchuk v. Rebenchuk . He was also alive to the facts material to the issue.

Indeed, his reasons for judgment as a whole disclose that he was attentive to both the governing principles and the material facts. [ 34 ] More specifically, his reasons for judgment disclose that he was satisfied the child had made a mistake in thinking at the outset that she could handle both university study and full-time work, a mistake that required her to withdraw from university for a year. He was also satisfied she had then come to realize she could only work part-time and had to devote more time and attention to her studies, noting that her marks had then improved appreciably.

This served to convince him that she had a reasonable academic goal, along with a reasonable career plan. He thought she was going to have to cut back on her personal expenses but was satisfied she could not carry on without the support of her parents. So he concluded she remained “a child of the marriage” and found that Mr Geran was liable to contribute to her support.

(4) The Bases for the Appeal of this Finding [ 35 ] In the light of Justice McIntyre’s reasons for judgment generally, there is little room on appeal to interfere with his finding in this regard. Recognizing this, counsel for Mr Geran essentially confined his submission to contending that Justice McIntyre erred in failing to give effect to three matters of salient fact: (

i) to the experience of the child between the fall of 2005, when she entered university, to the fall of 2007, when she returned to university; (ii) to her failure to apply for student loans; and (iii) to her renunciation of her relationship with her father. [ 36 ] As for the first, counsel contended that, since the child had lived on her own, worked full-time, and earned between $30,000 and $32,000 per year during the period from the fall of 2005 to the fall of 2007, she had ceased to be “a child of the marriage” and that accordingly her father was no longer obliged to contribute to her support. [ 37 ] Whatever else may be said of this matter, Justice McIntyre did not brush by it.

He gave it careful thought in the context of whether her father could reasonably be expected to resume his support of her on her return to university in the fall of 2007. He framed the issue in terms of whether the child, having ceased to be “a child of the marriage” during this two year period, regained that status upon her return to university. He then concluded this was possible in principle and went on to assess her situation as of the time of the application. [ 38 ] Assuming for the purpose of discussion that the child had ceased to be “a child of the marriage” during this period, some things are clear.

The pre-existing child support order had not been rescinded. Indeed, the parents seem to have treated it as though it were suspended. I say that for this reason. In anticipation of the child’s return to university in the fall of 2007 her mother asked her father to resume payment of support, and he agreed to do so, offering to pay her mother the amount, as before, of $341 per month. The mother, however, declined the offer, wanting more than this. The point is two-fold.

First, there was no technical impediment to varying the pre- existing order and, second, the parents themselves seemed to have acknowledged the potential for further financial responsibility.

[39] That aside, and as a matter of principle, a period of self sufficiency in the early stages of adulthood does not necessarily preclude afinding that at the time of the application the child is a “child of the marriage”. The Ontario Court of Appeal so held in Harrington v. Harrington. The Alberta Court of Appeal did likewise in Stocchero v. Stocchero (1997), 1997 ABCA 196 , 29 R.F.L. (4th) 223. And as pointed out by Justice McIntyre, other courts have acted upon this principle, as illustrated by Longhurst v. Longhurst, 2005BCSC 1189 and the cases referred to therein.

His reference to these cases should be seen for what it is: support for the existence of thisprinciple but not necessarily an endorsement of its application in those cases. The point is that this principle has to be applied with careand a measure of restraint, as in Harrington v. Harrington. Otherwise it is capable of unsettling what would ordinarily be regarded assettled.

Hence it is necessary to have careful regard for the circumstances of the particular case. [40] In the case at hand, the child was intent upon going to university and did so immediately upon graduation from High School.However, she then made a youthful mistake. She made the mistake of thinking she could handle university study while working full-time. She was incapable of both and, having stayed out a year as required by the University, she then returned at the first opportunity andovercame her mistake.

She returned on a more mature understanding of the demands of university study, and a more realisticappreciation of what this entailed, including the need to scale back her personal expectations and return to live with her mother. Nor is itwithout significance that her father then offered to resume his support payments.

Had her mother not rejected the offer, the father wouldhave gone supporting her as before. [41] In these circumstances, I am of the opinion Justice McIntyre cannot be said to have erred by failing to give effect to the fact thechild had lived on her own, worked full-time, and earned between $30,000 and $32,000 per year during the period from the fall of 2005to the fall of 2007.

This fact did not necessarily preclude a finding that at the time of application the child was “a child of the marriage”.And in the circumstances I am unable to say his finding to this effect is unreasonable on this account. [42] Counsel for Mr Geran next contended that Justice McIntyre erred in failing to give effect to the fact the child had not applied for astudent loan. The problem with this contention is that, based on the evidence (such as it was), the child was precluded from obtainingstudent loans by reason of the combined income of her parents.

This was the mother’s understanding, though there was no way ofknowing whether her understanding was correct, for no other evidence touching upon the matter was adduced, either by the mother or bythe father. [43] Thus, Justice McIntyre said no more of the matter than that the child had not applied for a student loan “on account of her parents’income.” Given the state of the evidence, I am of the opinion he cannot be said to have gone wrong by failing to make more of the matterthan this. [44] Finally, counsel contended that Justice McIntyre erred in not giving effect to the fact the child had unilaterally terminated herrelationship with her father without justification.

With respect, the case does not engage this consideration. The child was only six weeksold when her parents separated and, while she had had virtually no contact with her father in the years that followed, it can hardly be saidthat she had unilaterally terminated her relationship with him.

She was a casualty of the separation and divorce, and her father went onwith his life to the exclusion of hers, except to the extent he contributed to her support throughout the years. [45] In other circumstances, her failure to inform her father of her plans and obtain his views might well have told against thereasonableness of her expectation that he fund part of the cost, but not in these circumstances. For whatever reason, he was apparentlydisinclined to have contact with her, though he contributed to her support throughout, and it seems the two of them grew distant over theyears.

Indeed, it seems they hardly knew one another. [46] In conclusion, I can see no tenable basis for interfering with the finding by Justice McIntyre that “at the material time” the childwas a “child of the marriage” within the meaning of subsection 2(1)

b) of the Divorce Act and that her father was therefore obliged tocontribute to her support. [47] With that, we may turn to the subject of the second ground of appeal. 2. The order requiring Mr Geran to pay support in an amount determined pursuant to subsection 3(2)(

a) of the FederalChild Support Guidelines rather than subsection 3(2)(b)

[ 48 ] What is at issue here is whether Justice McIntyre misapplied

section 3 of the Guidelines in ordering Mr Geran to pay $843 per month for the support of the child. The issue falls to be addressed in the light of the provisions of

section 3 and the bases of principle and fact upon which he acted in reaching his decision.

(1) The Provisions of

Section 3 [ 49 ]

Section 3 first provides for the amount of child support payable by one parent to the other for the support of children under the age of majority. The

section then provides the basis for determining the amount to be paid for the support of children over the age of majority and unable to withdraw from the charge of their parents by reason of illness, disability, or other cause. Beneath these provisions—indeed all of the provisions of the Guidelines —lies the principle found in

section 26.1(2) of the Divorce Act : 26.1(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. [ 50 ] With that, I turn to the specific provisions of

section 3 of the Guidelines , beginning with those governing the amount payable for the support of children under the age of majority. (

i) children under the age of majority [ 51 ] Subsection 3(1) reads thus: 3(1) Presumptive rule—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. [ 52 ] The tables, which form part of the Guidelines, incorporate amounts intended to reflect the average percentage of income Canadian families spend in raising children. The amounts vary depending upon the number of children and the income of the parent required to pay the amount. Only the income of this parent is considered.

The reason for this lies in the two-fold assumption, first, that the other parent contributes to the support of the children by providing directly for their care and, second, that if the other is also earning an income he or she will spend proportionately the same amount on the children as the paying parent. The amounts specified by the tables are based on the further assumption—particularly relevant to this case—that the children, being under the age of majority, have no incomes of their own. [ 53 ] The table amounts aside, subsection 3(1)(

b) recognizes that an amount over and above the table amount may be called for as provided for by

section 7 of the Guidelines .

Section 7 allows for an additional amount to cover special or extraordinary expenses, including those associated with child care, medical and dental coverage, professional counselling, primary and secondary education, and extracurricular activities. (ii) children over the age of majority [ 54 ] The amount payable for the support of adult children unable to withdraw from the charge of their parents by reason of illness, disability, or other cause, is governed by subsection 3(2):

(2) Child the age of majority or over—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 this 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

[55] As contemplated by subsection 3(2)(a), the court may settle on the amount called for by the presumptive rule of subsection 3(1),“as if the child were under the age of majority.” Doing so entails resort to the amount specified in the applicable table (and to

section 7should there exist special or extraordinary expenses). This is commonly referred to as the usual Guideline approach. But, as subsection3(2)(

b) recognizes, this approach may be “inappropriate”. In that event, an “appropriate” amount is to be determined in accordance withsubsection 3(2)(b). The provisions of subsection 3(2)(

b) posit quite a different approach, one that envisions determining the amountbased on the actual, rather than presumed, needs and means and circumstances of the child, and the actual rather than the presumedfinancial ability of each of the parents. [56] Obviously, the key to employing one or the other of these approaches lies in whether the first is “inappropriate”, in which event an“appropriate” amount is to be determined in keeping with the second. These terms, which appear in both subsections 3(2) and 4(

b) of theGuidelines, were taken by this Court in Hagen v. Rankin to have the same meaning in relation to both. Their meaning was explained by the Court in the case of Dergousoff v. Dergousoff (1999), (SK CA), 48 R.F.L. (4th) 1: 67 The word "inappropriate" is the opposite of "appropriate," both relative terms having to do with something which is either unsuited orsuited to the occasion or purpose at hand.

Since, in this instance, the term "inappropriate" modifies the word "amount," used in the senseof a specified sum of money, the term speaks to an unsuitable amount: to a sum of money which, while specified for the purpose, is infact unsuited to that purpose. Hence, to speak of an inappropriate amount of money is to speak of a sum which either exceeds or fallsshort of the purpose. If it exceeds the purpose it is inappropriate to the extent of the excess; if it falls short of its purpose, it isinappropriate to the extent of the shortfall.

If it does neither, the amount is appropriate [2] [57] These, then, are the provisions of the Guidelines in issue.

(2) The Bases for the Impugned Decision. [58] Justice McIntyre ordered Mr Geran to pay the table amount of $843 per month in reliance on subsection 3(2)(

a) of the Guidelines“as if the child were under the age of majority” in the words of the subsection. He did not, however, require Mr Geran to pay any specialor extraordinary expenses pursuant to

section 7. He did not do so in light of the child’s income and her consequent ability to pay for suchthings as tuition, fees, books, and so on, and still have several thousand dollars left over. [59] As a matter of principle, he thought subsection 3(2)(

a) presumptively calls for the table amount provided for by subsection 3(1)(a)in keeping with the usual Guideline approach. That being so, he also thought that only if there exist clear and compelling reasons forrejecting this approach as inappropriate may the amount be determined pursuant to subsection 3(2)(b). He then said that this.

Whetherthe usual approach is inappropriate depends on the circumstances, noting that the closer the circumstances of a child over the age ofmajority are to those of a child under the age of majority the less likely the usual Guideline approach will be inappropriate. [60] As for the facts, he observed that the cost of tuition, fees and books amounted to between $3,500 and $4,000 per year, that the childwould be earning approximately $12,000 per year, and that her personal expenses amounted to $12,000, though he thought these weresomewhat excessive.

He went on to observe that, given her income, she was able to pay for her tuition, fees, and books and still have$8,000 left over. He thought this was sufficient to cover her reasonable personal expenses, but would leave her unable to contribute to theexpense incurred by her mother in providing a home for her. [61] He then decided that these circumstances were close enough to those of a child under the age of majority and living at home towarrant employing the usual Guideline approach, which is to say to warrant an order requiring her father to pay the table amount of $843per month.

He said he did not regard this as inappropriate, for he did not think the table amount was so high as to exceed the reasonable.

(3) The Appeal of the Order [62] To begin with, the decision requiring Mr Geran to pay the table amount of $843 per month is seriously at odds with the decision ofthis Court in Hagen v. Rankin. In that case the Court held, in circumstances very much like those present in this case, that requiring thefather to pay the table amount on the combined authority of subsections 3(2)(

a) and 3(1)(

a) of the Guidelines was inappropriate in lightof the fact the adult child, who was living with his mother and attending the University of Regina, was earning a substantial incomethrough part-time employment. He was earning $11,000 annually and was able in consequence to meet his reasonable needs except forroom and board. In these circumstances, the Court held that the amount required of the father fell to be determined under subsection 3(2)

(b). Accordingly, it allowed the appeal and varied the amount so as to reflect the need of the child for the financial assistance of hisfather in meeting the cost of board and room. [63] Unfortunately, it appears that Hagen v. Rankin was not drawn to Justice McIntyre’s attention. It seems to have been overlooked bycounsel and therefore overlooked by him.

This is unfortunate because that case stands for the proposition that, where a healthy and able-bodied adult child is living at home with one of the parents, is attending university, and is earning a substantial income, the amount ofchild support the other parent is obliged to pay should generally be determined on application of subsection 3(2)(

b) of the Guidelinesrather than 3(2)(a). There are good reasons for this. [64] As we have seen, subsection 3(2)(

a) falls to be applied “as if the child were under the age of majority”. Why, it might be asked,should a child who is 19 to 21 years old, let us say, and earning a substantial income, be treated as though he or she were 16 or 17 yearsold and earning no income? To ask the question is not to answer it, but to ask it serves to put the matter into perspective. [65] And it serves to remind us of something of considerable significance, namely the fact the child is earning a substantial incomeoperates to displace one of the basic assumptions on which the table amounts prescribed by subsection 3(1)(

a) are based: that childrenunder the age of majority have no incomes of their own. This operates in turn to throw the appropriateness of the table amount into doubt,which suggests in general that the amount is more appropriately determined pursuant to subsection 3(2)(

b) rather than 3(2)(a). [66] Viewed from a related perspective, the fact a child over the age of majority is earning a substantial income serves to move thecircumstances of the child away from those of a child under the age of majority, making it more likely that the usual Guideline approachwill be inappropriate. This, of course, is the reverse of the idea that the closer the circumstances of a child over the age of majority are tothose of a child under the age of majority the less likely it is that the usual Guideline approach will be inappropriate.

In this sense, thefact a child over the age of majority is earning a substantial income is not unlike the fact a child over the age of majority is living wayfrom home. Both serve to displace a basic assumption upon which the table amounts are based. And in the latter circumstance, subsection 3(2)(b), rather than 3(2)(a), generally applies, as in W.P.N. v. B.J.N., 2005 BCCA 7; 10 R.F.L (6th) 440 and as suggested in Park v. Thompson (2005), (ON CA), 13 R.F.L. (6th) 415 (Ont.

C.A.). [67] Moreover, subsection 3(2)(b), unlike subsection 3(2)(a), calls for an approach that entails determining the amount with reference tothe actual rather than the presumed needs and means and circumstances of the child, and the actual financial ability of each parent tocontribute to those needs.

This is the natural and logical approach to determining the amount of support that might reasonably beexpected of the parents of a healthy, able-bodied adult child pursuing a post-secondary education. [68] And taking this approach, rather than the usual Guideline approach, is more apt to result in a suitable amount when the child isearning a substantial income.

Suitable, that is, to the occasion or purpose at hand, namely to provide a level of parental assistancecommensurate with the actual needs of the child and the financial ability of the parents, and consistent with the object of the childsupport provisions of the Divorce Act as they apply to such a child. [69] To digress for a moment, I should like to emphasize that we are not here concerned with an adult child who is unable to withdrawfrom the charge of the parents by reason of “illness” or “disability”. That is quite a different matter.

Rather we are concerned with ahealthy and able-bodied adult who, while earning a substantial income, is unable to withdraw from the charge of the parents by reason of“other cause”, namely the pursuit of further education. [70] Returning to the case at hand with the whole of the forgoing in mind, including Hagen v. Rankin, I am of the respectful opinionJustice McIntyre erred in opting to apply subsection 3(2)(

a) of the Guidelines rather than subsection 3(2)(b). The crux of the error lay ina failure to appreciate that it was inappropriate to settle on the table amount in light of the fact the child was earning $12,000 per yearand was able in consequence to meet many of the needs she would otherwise have been reliant upon her parents to meet. In my judgment,what the case called for was the determination of an appropriate amount having regard for the actual needs of the child, rather than her presumed needs, and for the financial ability of each of the parents to meet those needs, all as contemplated by subsection 3(2)(b). [71] The result of opting to apply subsection 3(2)(

a) in preference to subsection 3(2)(

b) was to require the father to contribute the tableamount of $843 per month, or $10,116 annually. Were the mother to contribute a proportionate amount, proportionate to her incomerelative to his (the ratio is about 60/40), she would contribute $590 per month, or $7,080 annually. This makes for a combinedcontribution of $17,196 per year. Add the child’s annual income of $12,000, and the total comes to $29,200 per year. In effect, then, itwas as though the child needed almost $30,000 per year to pursue an undergraduate degree in Arts from the University of Regina. Thisappears quite unrealistic.

[ 72 ] Nor does the evidence indicate that the child needed this level of support from her parents. Given her income, she was able to pay the cost of her tuition, fees, and books, and still have $8,000 left over, an amount that was sufficient on Justice McIntyre’s view of the evidence to cover her reasonable personal expenses. So, what remained of her needs as a university student was an additional amount to cover the cost of her room and board.

Were her father to contribute $843, and her mother $590, their combined contribution would amount to $1,433 per month for this purpose. [ 73 ] The financial statements adduced in evidence do not bear this out, and they do not do so even though they were generally tailored to the pre-conceived end of showing that expenses far exceeded income. This is true of all of the financial statements: the mother’s, the father’s, and the child’s.

The mother’s statement rather suggests that the cost of room and board for the child was something in the neighbourhood of $7,000 to $9,000 per year, or $500 to $750 per month, based on the mother’s account of her annual household expenditures and on the allocation of a reasonable portion thereof to the child’s need for housing, meals, and other odds and ends. By household expenditures I mean annual expenditures related, first, to property taxes, insurance, upkeep, utilities, furnishings, laundry supplies, dry cleaning, and so on; and, second, to the cost of food.

According to the mother’s financial statement, these amounted to $18,000 annually. [ 74 ] On the assumption the mother’s financial statement in these respects is reasonably accurate, the father might reasonably have been expected to contribute something in the order of $420 per month toward the cost to the mother of providing room and board for the child.

I say this because, were the father to contribute the amount of $420, and were the mother to contribute the proportionate amount of $280, the total would come to $700 per month or $8,400 per year, an amount more or less consistent with the mother’s financial statement as it pertains to the cost of food and lodging. [ 75 ] I do not suggest this is altogether satisfactory. I only suggest this is about all one can make of the matter in light of the artificial quality of the financial statements. It continues to be regrettable that parties to litigation of this nature so often file financial statements such as these.

This Court remarked upon this practice in Dergousoff v. Dergousoff : 85. … Unfortunately, such statements in general have become notoriously unreliable and been largely discredited as "wish lists," artificially tailored, as they so often are, to the preconceived end of showing that monthly expenses outrun monthly income.

This is not so much a commentary on the [particular] statement as it is upon the practice of treating such statements as argument rather than evidence. [ 76 ] This is not to say that a budget of income and expenses in relation to an adult child in attendance at university need be a work of precision. But it should be prepared with attention to detail, supported to the extent reasonably possible, and should reflect an honest and realistic estimate of the actual or anticipated state of affairs.

Otherwise, judges are left with little choice but to do the best they can on the basis of what seems reasonable in one respect or another. This is especially so because of the often prohibitive cost of engaging in a viva voce hearing, or even of cross-examining on the affidavits. [ 77 ] This is the choice we are left with in this case.

And in my judgment, about the best we can do in light of the material before us is to settle upon the amount of $420 per month as the measure of the father’s obligation to contribute to the support of the child. [ 78 ] In sum, it is for these reasons as a whole that I would dismiss the first ground of appeal but give effect to the second by varying the amount to the extent of reducing it from $843 to $420 per month. I would grant judgment accordingly, but I would make no order for costs, given the divided success on appeal.

Dated, this 11 th day of May, 2011. “Cameron J.A.” _____ Cameron J.A I concur: “Smith J.A.” __________ Smith J.A

“Herauf J.A.” _________ Herauf J.A.