Homann v. Briscoe, 2020 NSSC 52

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Homann v. Briscoe , 2020 NSSC 52 Date: 20200211 Docket: SFSNISOV 109993 Registry: Sydney Between: Rachael Homann Applicant and Paul Briscoe Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Hearing: September 30, 2019 in Sydney, Nova Scotia Issues: 1. What is the obligation to pay child support to a child under the age of majority who is in receipt of significant employment income and who has completed high school? 2. What is the obligation to pay child support to an adult child who leaves employment to return to school?

Summary: The Court held the child support obligation for the minor child ended with his graduation from high school and his assumption of employment from which he received a significant income. The obligation to pay child support was reinstated for the five (5) months while the adult child was in college and the obligation was identified as a contribution to college expenses of the child. Keywords: Dependent child; child support Legislation: Parenting and Support Act, R.S.N.S. 198, c.160 Provincial Child Support Guidelines , O.I.C. 1998-386 Divorce Act , R.S.C. 1985, c. 3 Cases Considered: Geran v. Geran, 2011 SKCA 55 Tindle v. Tindle , 2012 BCSC 604

Colucci v. Colucci, 2017 ONCA 892 Graydon v. Michel 2018 BCCA 449 D.B.S. v. S.R.G., 2006 SCC 37 Giorno v. Giorno, (NS CA), 1992 CarswellNS 63 (N.S.C.A.) Braun v. Braun, 2019 SKQB 199 Mastin v. Mastin, 2019 NSSC 248 Boylan v. MacLean, 2018 NSSC 15 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Homann v. Briscoe, 2020 NSSC 52 Date: 20200309 Docket: SFSNISOV 109993 Registry: Sydney Between: Rachael Homann Applicant and Paul Briscoe Respondent Judge: Associate Chief Justice Lawrence I.

O’Neil Heard: September 30, 2019 at Sydney, Nova Scotia Counsel: Carolyn Nearing, Counsel for Rachael Homann Paul Briscoe, Self-Represented By the Court: Introduction [1] Ms. Homann lives in the Sydney, Nova Scotia area and Mr. Briscoe lives in Thunder Bay, Ontario. The parties nevermarried. They have one adult child N.B. born December 17, 1998.

[ 2 ] Mr. Briscoe was made subject to an Ontario Support Order dated October 29, 2003, requiring him to pay child support in the amount of $305.00 each month to Ms. Homann (exhibit 1, tab 4). The order has not been changed. [ 3 ] Ms. Homann filed an Interjurisdictional Support Application on May 8, 2018, seeking increased child support and a s. 7 contribution to the proposed university expenses of N.B. [ 4 ] Ms. Homann claimed increased child support of $427.99 per month because Mr. Briscoe’s income increased to $47,000.00, an increase from $35,000.00, the amount upon which the 2003 order was based. Ms.

Homann also said Mr. Briscoe stopped paying ongoing child support in July 2017. Ms. Homann also sought $150 per month as a contribution to dental costs. [ 5 ] Ms. Homann in the same document says their son finished high school in June 2016. However, her brief says June 2017. It is agreed he completed high school in June 2017. She says he earned $18,000.00 in 2016 as a reservist and was making $23,000.00 per year at the time of filing, i.e. May 8, 2018. [ 6 ] Also, at the time of filing, Ms.

Homann said the child wished to attend college and be trained as a policeman. [ 7 ] This court wrote to her on July 14, 2018 and August 14, 2018 because documents were required from her prior to the matter proceeding further. [ 8 ] Ms. Homann filed a statement of arrears prepared by the Ontario Family Responsibility Office dated March 30, 2018 which shows Mr. Briscoe stopped paying child support after June 2017. The consequential claimed arrears shown are $3,522.75, inclusive of interest to March 30, 2018. This increased to $4,575 by October 10, 2018 (exhibit 1, tab 12). [ 9 ] Mr.

Briscoe filed a response sworn October 4, 2018. Mr. Briscoe sought termination of his child support obligation effective June, 2017 because he says the child was no longer dependent at that time given he was not in school and was working as of July 1, 2017. [ 10 ] This matter first came before this Court on December 19, 2018 at which time there was an application from each party; the Court suspended the obligation of Mr. Briscoe to pay ongoing child support and suspended all efforts to collect child support arrears, if any, were underway. [ 11 ] The two applications were merged. Mr.

Briscoe attorned to the jurisdiction of this Court for the purpose of deciding the issues raised. The parties also agreed that Mr. Briscoe could present his oral evidence by phone and agreed that he could be questioned by counsel for Ms. Homann while doing so. Jurisdiction [ 12 ] I acknowledge a question to be asked and answered is whether this Court has jurisdiction to consider the application of Ms. Homann given the Court has herein decided (as explained in the following) the subject child was not dependent on May 8, 2018 when the application to vary was filed.

Although this is not a proceeding pursuant to the provisions of the Divorce Act , R.S.C. 1985 c.3, the jurisprudence in that area of law can be persuasive. [ 13 ] The Ontario Court of Appeal in Colucci v. Colucci , 2017 ONCA 892 ruled an application to vary could be considered after a child was no longer of the marriage. In contrast, the British Columbia Court of Appeal in Graydon v. Michel , 2018 BCCA 449 ruled the Court could not consider an application to vary a support order in those circumstances.

Both are Divorce Act proceedings. [ 14 ] Given the lack of clarity in this area of the law, the Supreme Court of Canada recently considered the factors that must be part

of the jurisdictional analysis. On November 14, 2019 the Supreme Court of Canada announced its disagreement with the decision of the British Columbia Court of Appeal in Graydon v. Michel and reinstated the decision of the British Columbia Provincial Court Judge. The reasons of the Supreme Court of Canada are to follow.

They were not released as of the date of this decision. [ 15 ] The Supreme Court of Canada is expected to provide guidance and to resolve the question of whether a Court has jurisdiction to consider a variation application filed at a time when a child is not a ‘child of the marriage’ or ‘dependent’ as the case may be. [ 16 ] I conclude I have jurisdiction to vary the child support order. [ 17 ] I will consider the possibility that the child became independent and then regained dependency. [ 18 ] Evidence of N.B’s earnings is critical to a determination of the times when N.B. was dependent. [ 19 ] N.B. had earnings in recent years, principally from his employment as a reservist with the Canadian Armed Forces, as outlined below: 2015 $7,981.90 see T1 2015 2016 $18,846.93 see Exhibit 1 at Tab 2 2017 $25,245.08 see T1 2017 2018 $26,997.35 see T1 2018 (Ms.

Homann, in her evidence, estimated her son’s 2018 income from all sources as in the range of $37,000) [ 20 ] Mr. Briscoe’s income in recent years was as outlined below: 2014 $46,883.00 see Exhibit 1 at Tab 6 2015 $52,517.00 see Exhibit 1 at Tab 6 2016 $52,815.00 see Exhibit 1 at Tab 6 2017 $62,721.00 see Exhibit 1 at Tab 6 [ 21 ] Ms. Homann says she does not earn an income and does not work outside the home. She did not offer any reason for not working outside the home. She said her current partner supports her financially and has done so for some time. Ms.

Homann’s ISO filing Form 1 placed his annual income at $252,882.60. Issues [ 22 ] The issues raised are as follows: i. Did the subject child, D.O.B. December 17, 1998 cease to be a dependent child in June 2017 upon completion of high school although he had not reached the age of majority and continued to live with his mother? ii. Is the answer to question one (1) impacted by the level of earnings of the subject child at that time?

iii. If the child was no longer a dependent child effective June 2017, did Mr. Briscoe’s obligation to pay child support end? iv. If the child was not dependent on May 8, 2018, the day the variation application was filed, did the Court have jurisdiction to consider the application to vary filed by Ms. Homann? v. Did the subject child reacquire his status as a dependent child? If the child reacquired his status as a dependent child, did Mr. Briscoe once again become subject to an obligation to make child support payments to Ms. Homann and to contribute to the special or extraordinary expenses of the subject child?

Discussion [ 23 ] Responsible and caring parents are generally free to deny an adult child financial assistance to pursue higher education, notwithstanding the parents are able to assist. That is not true of families that come before the court.

At the request of either parent, legislation provides that the Court may decide whether assistance should be provided. [ 24 ] Given their status as divorced or separated parents and their often-differing financial circumstances and values, it is often difficult for separated parents to agree on when a child should be asked to meet his/her financial obligations without a contribution from either parent.

This case forces a balancing of the obligation of separated parents to meet their respective obligations to support adult children with the obligation of adult children to assume a greater responsibility to support themselves and to accept responsibility for their decisions. [ 25 ] Mr. Briscoe decided to discontinue his child support payments when his child completed high school, July 1, 2017 and was ‘working’ (exhibit 1, tab 5 and tab 12).

The child was not yet nineteen, the age of majority in Nova Scotia. [ 26 ] The Parenting and Support Act , R.S.N.S. 198 c.160, the ‘ PSA ’ provides for the payment of child support for a dependent child(ren): Support order 9.

Upon application, a court may make an order, including an interim order, requiring a parent or guardian to pay support for a dependent child. 1997 (2nd Sess.), c. 3, s. 4; 2015, c. 44, s. 11 . [ 27 ] Dependent child is defined in the ‘ PSA ’ as follows: 2(c) “dependent child” means a child who is under the age of majority or, although over the age of majority, is unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or the guardians or obtain the necessaries of life; [ 28 ] The PSA further provides: 8.

A parent or guardian of a child who is under the age of majority is under a legal duty to provide for the reasonable needs of the child except where there is lawful excuse for not providing them. 2015, c.44, s. 10 . . . . . . Powers of court

10(1) When determining the amount of support to be paid for a dependent child or for a child under

Section 11, the court shall do so in accordance with the Guidelines.

(2) The court may make an order pursuant to subsection (1), including an interim order, for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as the court thinks fit and just.

(3) A court may award an amount that is different from the amount that would be determined in accordance with the Guidelines if the court is satisfied that (

a) 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 special provisions have otherwise been made for the benefit of a child; and (

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

(4) Where the court awards, pursuant to subsection (3), an amount that is different from the amount that would be determined in accordance with the Guidelines, the court shall record its reasons for doing so.

(5) Notwithstanding subsection (1), a court may award an amount that is different from the amount that would be determined in accordance with the Guidelines on the consent of the parents or guardians if satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

(6) For the purpose of subsection (5), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the Guidelines, but 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 Guidelines. [ 29 ] The ‘ PSA ’ determines dependency solely on the basis of the age of the child for children under the age of majority (s.2(c)).

For children over the age of majority, an inability to withdraw from the ‘charge’ of parents or guardians must exist. This definition is adopted by the Provincial Child Support Guidelines; O.I.C. 1998-386, (s.2(1)). There are very limited circumstances when the presumptive obligation to pay child support for a child under the age of majority is rebutted (s. 8 & 10 of the PSA ). [ 30 ]

Section 8 of the PSA supra provides the duty to support is to provide for the reasonable needs of a child; except where a lawful excuse exists for not doing so. [ 31 ] Sections 10(3) and (5) of the PSA provide that a Court may order an amount different than the guidelines if satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. [ 32 ] The Provincial Child Support Guidelines , as amended at s.3 provide: 3(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent against whom the order is sought; and (

b) the amount, if any, determined under

Section 7. Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child. Further, the Guidelines at s.7 provide for the payment of a child’s special or extraordinary expenses in defined circumstances. In this case, the payment of post-secondary education and health expenses is sought by Ms. Homann.

Section 7 provides: 7(1) In a child support order the court may, on a parent's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents and those of the child and, where the parents cohabited after the birth of the child, to the family's pattern of spending prior to the separation: . . . . . (

c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; . . . . . (

e) expenses for post-secondary education;

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. [ 33 ] The obligation of Mr. Briscoe to pay child support and a contribution to special expenses will be assessed for several periods: (

a) The first period is from July 1, 2017 until the child reached nineteen years of age on December 17, 2017; (

b) The second period is from December 18, 2017 to commencement of studies at Holland College in January 2019; (

c) The third period is when the child was attending Holland College from January 2019 to May 2019; (

d) The current period commenced after completion of the program at Holland College in May 2019;

A. July 1, 2017 – December 17, 2017 [34] N.B. continued to work as a member of the reserves following his graduation from high school in June 2017. His mothertestified the $25,245.08 he earned in 2017 was mostly earned following his graduation. He would typically spend the summer months ata base and during that time earned the bulk of his income as a reservist. Ms. Homann testified that when home he did not pay room andboard and had only discretionary expenses. This is at variance with her declaration in Form 1 being the ISO form requiring financialinformation from her.

At paragraph 6, under the heading Household Income, she said her son paid for 20 percent of the householdexpenses and earned $18,000 each year. [35] Even if one assumes the child earned only $20,000 over the final six (6) months of 2017 his monthly income, on average, wasin excess of $3,000. His father was earning approximately $5,000 per month over this period. In 2018 the child’s income increased to$37,000. [36] I am satisfied the child’s reasonable needs were being satisfied by the child himself following his graduation from high schoolthrough to January 2019.

This represents a ‘reasonable excuse’ for not providing support as that language is used in s.8 of the PSA. [37] In Giorno v. Giorno, (NS CA), 1992 CarswellNS 63 (N.S.C.A.) a child who left school and was receivingemployment insurance income was found not to qualify as a child of the marriage. [38] In Geran v. Geran, 2011 SKCA 55, the Saskatchewan Court of Appeal found the quantum of child support for a child under theage of majority who was earning $12,000 annually should be less than the table amount. The Court ordered the payment of an amountabout one-half the Guidelines amount for the child. [39] In Braun v.

Braun, 2019 SKQB 199, Justice Wilson applied the Geran analysis and provided a thorough and helpful review ofrelevant principles a Court should apply when tasked with determining the obligation of a parent to support an adult child attendinguniversity. [40] In Tindle v. Tindle, 2012 BCSC 604, the Court declined to order child support for a child benefiting from a significant trustfund. [41] Justice Keith in a recent decision considered the same issues in Mastin v.

Mastin, 2019 NSSC 248 ultimately concluding theparents were required to continue to support adult children whose university plans were not ‘predictable’. [42] Herein I am not satisfied the subject child was ‘saving’ for university in 2017 following completion of high school and whilestill under the age of majority. The evidence does not support that conclusion, which if true, would be relevant to the Court’s assessmentof whether his needs were being met during this period.

As already observed, N.B.`s needs were met and given what the court knows ofhis circumstances he had the additional capacity to save money. [43] I am satisfied all his earnings were available to him to meet his needs during the period preceding his nineteenth birthday. Ifind he was living as an independent adult and an obligation to provide child support did not arise. [44] The quantum of the Respondent’s child support obligation from July 1, 2017 until his son’s 19th birthday on December 17,1998, was therefore zero. B. December 18, 2017 – Enrolment at Holland College in January 2019

[45] After December 18, 2017 Mr. Briscoe was not subject to a presumptive obligation to pay child support. The child was nolonger dependent given he was fully capable of withdrawing from the charge of his parents and capable of obtaining the necessities oflife as that language is used in s.2(

c) of the ‘PSA’ and he in fact lived an independent life albeit he continued to live expense free with hismother. [46] As already observed, the child’s 2018 income was in the range of $37,000. He was clearly independent during this period. C. January 2019 [47] The more difficult question on these facts is whether the subject child regained his status as a dependent child by virtue of hisenrolling in Holland College in January 2019 to be trained as a police officer and whether Mr. Briscoe’s obligation to pay child supportresumed as a result. The related question is whether Mr.

Briscoe also became subject to an obligation to contribute to the child’s specialexpenses as a result of his attending Holland College. [48] At paragraphs 38-39 in Boylan v. MacLean, 2018 NSSC 15, Justice Jesudason provided a helpful

summary of the law governingthe obligation of a parent to pay special expenses for a child: 10.1 General approach to

section 7 expenses [38] In determining the Mother’s request for a contribution from the Father in relation to each of her claimed expenses, I should: • determine whether the contribution was covered by the 2005 Consent Order and, if so, whether I should vary that Order; • determine whether the expense falls within one of the enumerated categories of s. 7 of the Guidelines; • determine whether the expense is necessary in relation to S’s best interests; • consider the reasonableness of the expense in relation to the parents’ and S’s means and to the family’s pattern of spending prior toseparation; and • if the expense falls under subsection 7(1)(

f) of the Guidelines (expenses for extracurricular activities), determine whether it is“extraordinary” after determining the above considerations. (L.K.S. v. D.M.C.T., 2008 NSCA 61 , at paragraph 27; Leave toappeal to the Supreme Court of Canada denied at D.M.C.T. v. L.K.S., (SCC) [39] If I determine that the expenses are proper

section 7 expenses, I have the discretion to require that the Father pay all or any portionof same. I can consider any subsidies, benefits, income tax deductions or credits when I determine the amount of an expense which canbe estimated: subsection 7(3) of the Guidelines. The guiding principle is that the expense should be shared in proportion to the parties’incomes given that S did not contribute to any of the expenses: subsection 7(2) of the Guidelines. [49] Ms. Homann testified the Holland College program ended in May 2019. However, in the pre-hearing submission filed May2019 on behalf of Ms.

Homann, the program is said to run until October 2019 with a requirement that the child reside in PEI untilAugust. The university described the course as beginning in January 2019 with graduation August 30, 2019. [50] The tuition cost and other fees associated with the program were in the range of $31,539 (exhibit 1, tab 9). At paragraph 5 ofISO Form J, Ms. Homann estimated the Holland College program cost, including tuition, a meal plan and accommodation as $30,800.

The Court has not been told what the after-tax cost of the program was, i.e. who claimed any related tuition credits, dependent creditsand the like which may be available to a student or the parent of a student.

[ 51 ] I am satisfied Mr. Briscoe should not be required by Court order to contribute to the cost of this program given the quality of the evidence before it; the child’s substantial earnings in the years prior to 2019 and given the father’s income level. [ 52 ] N.B. earned a substantial income in the range of $37,000 in 2018 and had modest living expenses in 2018 as far as the Court is aware. [ 53 ] The Court has not been provided with an accounting of the child’s savings in the period preceding his attendance at Holland College and following his high school graduation.

The Court has not been told what, if any, benefit may have accrued to him or any other person by virtue of his payment of tuition. The net cost of this program to N.B. is therefore not known. [ 54 ] The evidence of the child’s circumstances is incomplete. Ms. Homann’s reports are not persuasive evidence of this child’s recent history of earnings, his current circumstances or his indebtedness, including the status of student loans. There are many unanswered questions about this child’s financial circumstances since achieving adulthood. [ 55 ] I am also satisfied, as testified to, for a period of years when Mr.

Briscoe was unemployed, he continued to pay the Court ordered child support payment. In doing so, I accept he overpaid the child support he would have been required to pay. Nevertheless, I find Mr. Briscoe’s oral evidence on this point sufficiently reliable and credible to support this conclusion. [ 56 ] Mr. Briscoe’s income in recent years is listed at paragraph 20 supra .

He is a person of modest to medium means. [ 57 ] Given N.B.’s age at the relevant time and the short duration of the period before he attended Holland College after graduating from high school, I find he regained his status when he began his studies at Holland College. These factors weigh in favour of the court finding he regained his state of dependency. I am therefore ordering Mr. Briscoe to pay child support for the five (5) months N.B attended Holland College; January – May 2019. The Nova Scotia table amount for one child is $651 per month based on Mr. Briscoe’s 2018 income of $76,000.

This amount shall be paid directly to the child. Any payment already made by Mr. Briscoe as child support for the period after June 30, 2017 shall be a credit against this obligation. [ 58 ] Although characterized as child support these payments are a substantial and reasonable contribution to the living costs/special expenses of the child while at Holland College and a significant amount of after-tax income payable by Mr. Briscoe. No further order for ongoing support including for the payment of special expenses will issue. D.

Retroactive Child Support prior to July 1, 2017 [ 59 ] As stated, for the purposes of this decision I will assume I had jurisdiction to vary the earlier child support obligation of Mr. Briscoe. Justice Keith in Mastin , supra and Justice Jesudason in Boylan v. MacLean , 2018 NSSC 15 provide comprehensive reviews of the law which governs when a claim for retroactive child support arises. [ 60 ] I am not prepared to order the recalculation of any child support obligation or the payment of health-related expenses by Mr. Briscoe which pre-dated N.B.’s graduation from high school.

No variation of that obligation is warranted. Ms. Homann did not pursue any adjustment in the child support obligation until May 8, 2018. Mr. Briscoe’s court ordered obligation to pay child support was fully met by him while the child was dependent, that is to June 2017. Child support orders have as objectives certainty, consistency, finality and fairness ( D.B.S. v. S.R.G. , 2006 SCC 37 ). [ 61 ] Mr. Briscoe earned a modest to medium level income in recent years and met his court ordered child support obligation through a period of unemployment.

It would be unfair to now recalculate his child support obligation for the period before his son became independent. [ 62 ] The Court concludes the remaining educational costs of the child should be shared by Ms. Homann and the child as they determine appropriate. In the view of the Court, this outcome is a reasonable balancing of the respective obligations, means and wider circumstances of all of the parties.

[ 63 ] In

summary: 1. Mr. Briscoe’s child support obligation first terminated at the end of June 2017 and no retroactive recalculation of that obligation for the period prior is supported by the evidence. That claim is therefore dismissed. Mr. Briscoe’s obligation to support N.B. while N.B. was at Holland College is met by the payment of child support to him directly for five (5) months (January – May 2019). That amount is $651 for each of these months and is payable at the rate of $250 per month beginning June 1, 2020 until paid in full. Mr.

Briscoe is to be credited for any child support paid for periods after June 30, 2017 2. The claim of Ms. Homann for an order requiring Mr. Briscoe to pay special expenses for N.B. for the period prior to her filing an application on May 8, 2018 is dismissed; And Mr. Briscoe has no liability for any other special expenses related to N.B., whether past or ongoing. ACJ