Bury v. Beaton, 2012 NSSC 37

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Bury v. Beaton, 2012 NSSC 37 Date: 20120124 Docket: SFSNMCA009442 Registry: Sydney, N.S. Between: Jeffrey Harold Bury Applicant v. Theresa Irene Beaton Respondent LIBRARY HEADING Judge: The Honourable Justice Darryl W.

Wilson Heard: October 17, 2011 in Sydney, Nova Scotia Final Written Submissions: November 2, 2011 Written Decision: January 24, 2012 Subject: Variation of child maintenance - post-secondary education expenses - retroactive variation of childcare expenses Legislation: Maintenance and Custody Act , R.S.N.S. 1989, c. 160 Nova Scotia Child Maintenance Guidelines , NS Reg 53/98, Secs. 3 and 7 Result: Variation of childcare expenses retroactively allowed. Post-secondary education expenses for a child under the age of majority determined. Child maintenance payable for adult child attending university determined.

Termination date for payment of child maintenance denied. Terms and conditions included in Maintenance Order.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Bury v. Beaton, 2012 NSSC 37 Date: 20120124 Docket: SFSNMCA009442 Registry: Sydney, N.S. Between: Jeffrey Harold Bury Applicant v. Theresa Irene Beaton Respondent Judge: The Honourable Justice Darryl W. Wilson Heard: October 17, 2011 in Sydney, Nova Scotia Final Written Submissions: November 2, 2011 Written Reasons: January 24, 2012 Counsel: Leigh Davis, Counsel for the Applicant Lee Anne MacLeod-Archer, Counsel for the Respondent

By the Court: [ 1 ] On July 2, 2010, the father applied to vary the Table amount and

Section 7 child care expenses of a Consent Order issued January 23, 2003. The mother’s Response was to request no changes to the Consent Order. ISSUES [ 2 ] The issues for determination are as follows:

(1) The amount of child maintenance payable while John was a minor, but attending university.

(2) The amount of child maintenance payable when John attains the age of majority.

(3) What is the effective date for the discontinuance of childcare payments and should there be a retroactive variation of the childcare expenses and reimbursement by the mother of any over-payment of childcare expenses.

(4) Should the court make an Order terminating the father’s child maintenance obligation at a specific time or on the happening of a specific event.

(5) Should the court make an Order imposing terms, conditions and restrictions in connection with the Order. BACKGROUND [ 3 ] The parties met while living separately in Yellowknife, Northwest Territories in 1991. The father was employed as a medical resident and the mother as a nurse. During their brief relationship, the mother became pregnant and their child, John, was born August 29, 1992. The parties separated soon after the pregnancy with the father relocating to Australia to complete his fellowship and the mother returning to Cape Breton. The father works as an Orthopedic Surgeon in Edmonton, Alberta.

The mother is employed in Cape Breton. [ 4 ] The father has never had any involvement or contact with his son. The parties have not had any personal communication since 1992. [ 5 ] The father paid child maintenance pursuant to an Order dated July 28, 1993 of the Supreme Court of the Northwest Territories in the amount of $500.00 per month. The father was earning approximately $40,000.00 a year as a medical resident. [ 6 ] The mother applied to vary the 1993 Order in 2002 and a Consent Order was issued on January 23, 2003.

The father paid a lump sum amount of $30,000.00 to satisfy outstanding child maintenance arrears, which accrued prior to November 1, 2002. He began paying $1,974.00 each month in the Table amount of maintenance, based on the Alberta Tables for an annual income of $255,000.00 per year. The parties were required to exchange Income Tax Returns by June 1 st of each year and adjust the Table amount effective June 1 st for the following twelve (12) months based on the parties’ Line 150 incomes as disclosed in their Income Tax Returns. Paragraph 3 of the Consent Order provides for the payment of childcare expenses.

It states:

Section 7 expenses payable at this time are limited to Dr. Jeffrey Harold Bury’s proportionate share of child care expenses incurred, so that Theresa Irene Beaton can pursue her employment and are fixed at this time at Seven Hundred Dollars ($700.00) per month for eleven months. At this time, Dr. Jeffrey Harold Bury’s share of s. 7 expenses is Eighty Six Percent (86%) representing a payment of Five Hundred and Fifty One Dollars ($551.00) payable on the first day of each month commencing November 1, 2002.

[ 7 ] The father has paid the Table amount of maintenance, as well as his proportionate share of childcare expenses which were fixed at $700.00 per month, in accordance with the Consent Order. It is his understanding that childcare expenses were not incurred and the mother did not notify him childcare expenses did not exist. He claims an overpayment of $51,160.00, which was his contribution towards childcare expenses since 2002. [ 8 ] The mother acknowledged that she did not pay a fixed monthly amount for childcare. However, she required childcare, which was provided by her mother and aunt, who resided together.

As a nurse, she was required to work various shifts, some of which involved being on call, late nights or overnight. The mother and John resided with her mother and aunt until 2005. After the mother and John moved into their own residence, the mother continued to rely upon her mother and aunt to provide care for John including the preparation of meals for him when she was working. Her aunt also transported John to various activities. When John turned seventeen (17) she allowed him to stay overnights by himself. She stated her mother and aunt would not accept payments for childcare or meals.

She made cash gifts to them and paid household expenses in lieu of a regular payment. She also incurred additional

Section 7 extraordinary school and extra-curricular activity expenses for John over the years, including: tutoring expenses, driving instructions and car insurance. She used the money paid by the father for

Section 7 childcare expenses for these other

Section 7 expenses. [ 9 ] John graduated from high school in June, 2010 and enrolled in a Bachelor of Arts program at the University of Kings College in Halifax in September, 2010 under a transition year program. At that time, he was eighteen (18) years of age. John was diagnosed with a non-verbal learning disorder in 2003. Dr. Reg Landry, a psychologist, testified. In July, 2010, he provided the mother with a psycho- educational assessment to assist with John’s transition from high school to university.

John’s learning disability manifests itself with organization and planning difficulties and is not intellectually related. It leads to inconsistencies in his academic performance. The Foundation Program at the University of Kings suited his needs. John was successful in completing the university credits which were part of the Foundation Program. He had to withdraw from one course, which was not part of the Foundation Program. The mother attributes this withdrawal to difficulties he had coping with the expected workload of that course. According to Dr.

Landry, John may experience similar difficulties in his 2 nd , 3 rd , and 4 th years. [ 10 ] While attending university, John resides in Halifax and returns to reside with his mother during the summer and school breaks. [ 11 ] The mother’s Line 150, Total Income was $76,360.00 in 2009 and $74,384.00 in 2010. The father’s Line 150, Total Income , in 2009 was $415,495.00 and in 2010 was $403,829.00.

The mother claims the following post-secondary education expenses: Tuition, residence, meal plan & fees $15,294.28 Books $851.62 Furnishings $424.18 Computer $1,495.00 Phone/Internet $617.16 Travel $1,331.73 Clothing $500.00 Miscellaneous - University Related $1,500.00 TOTAL $22,013.69 [ 12 ] The mother was eligible to receive the following subsidies, benefits or income tax deductions relating to the above expenses:

1. Federal Dependent Tax Credit $1,557.30 2. Federal Tuition Transfer from Child Tax Credit $750.00 3. The Nova Scotia Dependent Tax Credit $614.33 4. Nova Scotia Tuition Transfer from Child Tax Credit $366.72 TOTAL $3,288.35 [ 13 ] John’s only income in 2010 was $400.00 from an RESP. He did not work during the school year. He was not able to find employment during the summer of 2011. He only obtained his drivers’ license during the summer of 2011. During the summer break in 2011 he obtained a bursary to study French. [ 14 ] The father seeks the following remedies:

(1) A variation of the Consent Order to discontinue payments for childcare;

(2) Reimbursement (or credit) for monies paid to the Respondent for childcare expenses which were paid by him to, but not incurred by, the Respondent;

(3) That Table amount child maintenance be payable only from May to August in 2012 and 2013 if John is attending university full-time and returns to live at home with Ms. Beaton during those months; his proportionate share of John’s reasonable and necessary university expenses until his graduation in the Spring of 2014.

(4) The Table child maintenance and

Section 7 contributions cease if John no longer attends school, at the end of John’s four year program (June 2014), works full-time instead of attending school, marries or dies, whichever comes first.

(5) The father requests the Order include the following additional terms and conditions: (

a) the mother provide written notification, within 14 days, of any material change in John’s circumstances. This should include, but not be limited to, death, marriage, leaving school, or taking full-time employment; (

b) receipts relating to all

Section 7 expenses to which she seeks a contribution; (

c) John’s school transcripts; (

d) John’s Income Tax Returns and T4 slips. (

e) that John contribute financially to his post secondary education, if he is able. (

f) the ability to claim John’s post secondary expenses, for Income Tax purposes, every second year; and

[ 15 ] The mother seeks to continue the father’s child maintenance obligation, including contributions to the special and extra- ordinary expenses. She seeks a contribution towards John’s post-secondary education expenses and she opposes any claim for repayment of past childcare payments and a clause providing for future termination of the father’s child maintenance obligation. [ 16 ] The hearing proceeded pursuant to the provisions of the Maintenance and Custody Act , R.S., c. 160, as amended.

Pursuant to Section 37(1) of the Act , the court may make an Order varying, rescinding or suspending, prospectively or retroactively, a Maintenance Order where there has been a change in circumstance since the making of the Order or last Variation Order.

I am satisfied there has been a change in circumstances since the making of the last Variation Order - childcare expenses are no longer required, John began attending university in Halifax in September, 2010, and John reached the age of majority in August, 2011. [ 17 ] Pursuant to Section 37(2), when making a Variation Order with respect to child maintenance, the court shall apply

Section 10 of the Act . [ 18 ] Section 10(1) directs the court when determining the amount of maintenance to be paid for a child of unmarried parents, to do so in accordance with the Guidelines . Section 10(2) gives the court authority to make an Order for a definite or indefinite period, or until a specific event occurs and to impose terms, conditions or restrictions in connection with the Order, as the court thinks fit and just. ISSUES 1 & 2 Ongoing Child Maintenance [ 19 ]

Section 3 of the Guidelines provides: Presumptive rule 3.

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

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

b) the amount, if any, determined under

section 7. Child the age of majority or over

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

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

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. ...

Special or Extraordinary Expenses 7.

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: ... (

e) expenses for post-secondary education; ... Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses 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. [ 20 ] A similar fact situation was considered by the Nova Scotia Court of Appeal in Lu v. Sun, 2005 NSCA 112 , leave to appeal to the Supreme Court of Canada refused.

The Appeal Court confirmed the trial judge’s determination that a non-custodial parent pay the Table amount of maintenance for a child under the age of majority while that child is attending university in a city other than where the custodial parent resides. (Section 3(1)(

a) of the Guidelines ). The court noted that the non-custodial parents’ contribution to the child’s

Section 7 post-secondary education costs when she was a minor should take into account that the mother’s expenses would be reduced for the first year her daughter attended university for items, including food and utilities and that paying the full Table amount reduced the money available to the father to pay

Section 7 expenses relating to his daughter’s post-secondary education costs for her first year. Requiring the father to contribute towards John’s residence and meal plan costs while attending university would be making him pay twice for these expenses since accommodation and meal costs are included as part of the Table amount.

Based on the above, I find that the father shall pay the full Table amount of maintenance for the period September 1, 2010 until April 30, 2011, while John was a minor and living in Halifax while attending university, and from May, 2011 to August, 2011, while John was a minor and residing at his mother’s. [ 21 ] I find the following expenses to be reasonable and necessary

Section 7 post-secondary education expenses for John’s first year of university: tuition and fees charged by the university, $851.62 for books, $424.18 for furnishings, $1,495.00 for a computer, $400.00 for phone/internet and $1,000.00 for travel. The mother’s claim for residence and meal plan as well as clothing and incidental are denied as they are covered by the Table amount, which the father is paying. [ 22 ] The amount of these expenses are to be reduced by $3,288.35, to account for the subsidies, benefits and income tax deductions related to them.

I find John was not able to make any contribution towards his first year, post-secondary university expenses. The total income of the parties for 2010 was $478,213. The father’s income represents 84% of the total. His pro-rata share of John’s university expenses for his first year of university is 84% of the approved university expenses, after accounting for subsidies, tax deductions, etc. Counsel for the parties are to do the necessary calculations. [ 23 ] John turned nineteen (19), the age of majority in Nova Scotia, in August, 2011. He began his second year of university in Halifax in September, 2011.

John was not able to find employment during the summer of 2011. He has a learning disability, which I find would affect his academic success if required to work during the academic year. Both parties have the financial means to contribute towards John’s support. Some of the mother’s costs, such as food and utilities would be reduced while John is attending university.

The onus is on the father to show that the amount of the Child Maintenance Order is inappropriate, having regard to the condition, means, needs and other circumstances of the child, and the financial ability of each spouse to contribute to the child. The father submits that he should not be required to make any payment to the mother for John while he is at university, since his contribution covers John’s university costs while attending university.

While I am satisfied the full Table amount of maintenance is inappropriate as the father will be contributing to John’s accommodation and meal costs while attending university and the mother’s child-related costs would be reduced, the father has not satisfied the court there should not be any payment to the mother while John is attending university, other

than a contribution towards his university expenses. [ 24 ] In Lu v. Sun , (supra), the Court of Appeal affirmed the trial judge’s approach of using the Table amount as a guide when determining the amount of child maintenance to be paid in addition to post-secondary education costs for the months a child who is the age of majority attends university in a city other than the place where a custodial parent is residing. In Lu v.

Sun , (supra) , the court affirmed the trial judge’s determination that one-half of the Table amount “recognizes that there are ongoing costs to the mother of maintaining the daughter’s permanent home and of covering incidentals that she as a parent with whom her daughter lives has to provide for her daughter and also recognizes the reduction in some expenses, such as food and utilities at home that results from her daughter being away during the months she attends university.” [para. 28] [ 25 ] Beginning September 1, 2011, when John reached the age of majority.

The appropriate amount of maintenance the father shall pay is 50% of the Table amount during the period from September 1, 2011 to April 30, 2012, and each subsequent university year. The full Table amount of maintenance is payable when John is residing with his mother during school breaks from May to August, 2012 onward. The father shall receive credit for any overpayment of the Table amount from September 1, 2011 onward. [ 26 ] Ongoing

Section 7 post-secondary education expenses for John’s second and subsequent year include the cost of tuition and university fees, room and board, books, travel and internet/phone. I’ve already identified reasonable amounts for travel and internet/phone. The mother is to provide receipts to the father for tuition and university fees, room and board and books. These expenses are to be reduced for any subsidies, benefits or income tax credits related to the expenditures.

Should John be able to find work, he is to contribute 2/3 of any income earned towards his university expenses, which are to be deducted before apportionment. [ 27 ] On June 1 of each year, the mother is to provide a copy of John’s income tax returns with attached scheduled and Notices of Assessment from the previous year; a copy of John’s university marks for the prior academic year, and confirmation of any university expenses for the prior year. [ 28 ] John is an adult and, therefore, the mother may not be able to provide this information if John refuses to provide it.

If John does not want to release this information, then the father’s obligation to assist with university expenses can end. [ 29 ] Each of the parties are to continue to exchange their Income Tax Returns and Notices of Assessment by June 1 st of each year. [ 30 ] The father shall pay his proportionate share of John’s post-secondary education expenses within thirty (30) days of receiving proof of the expenditures. ISSUE #3 RETROACTIVE CHILD CARE EXPENSES [ 31 ] The parties agree that the future payments for childcare are to be terminated.

The father submits that he has been overpaying for childcare for many years and that the year the childcare expenses ceased is the appropriate date that his contribution should end. He submits that the Court Order states that the

Section 7 expenses payable at this time are limited to the father’s proportionate share of childcare expenses incurred. The father submits that childcare expenses were not incurred since the grandmother and grandaunt did not accept payment and the mother did not provide receipts for cash gifts or household expenses paid. The father submits there was an obligation on the mother to advise him childcare expenses were not being incurred and she should not be able to retain the monies paid just because he did not file an application to vary.

He seeks reimbursement or credit for monies paid to the mother for childcare expenses by him but not incurred by her. [ 32 ] The mother submits that the date childcare expenses should end is July, 2011, when the father filed his application. Her evidence is that she allowed John to look after himself, including staying overnights when he turned seventeen (17), which would be in August, 2009. She stated she used some of the childcare money paid by the father for other

Section 7 expenses such as Driver Education and tutoring class, but never made a claim for contribution by the father for these costs.

[33] Section 37(1) of the Maintenance and Custody Act, (supra), provides the court with power to vary a Maintenance Orderretroactively. In S.(D.D.) v. G.(S.R.) 2006 SCC 37 , 2006 S.C.C. 37, the court deal with the issue of factors to be consideredwhen determining the issue of retroactivity. That case dealt with an application by a custodial parent for a retroactive increase in theamount of maintenance. This case is an application by a non-custodial parent seeking a reduction in the amount of child maintenance forchildcare expenses and reimbursement for an overpayment of these expenses.

I agree with those cases which supports the view that thefactors annunciated in S.(D.D.) v. G.(S.R.), (supra), apply in both situations. [34] The factors to be considered (with the necessary adjustments) include:

(1) Reason for delay in bringing application;

(2) Conduct of the recipient parent;

(3) The child’s circumstances;

(4) Whether a retroactive award would result in hardship. [35] The provision in the Consent Order dealing with childcare expenses fixes childcare costs at $700.00 per month and does notrequire receipts to be provided. No evidence was led by either party as to their intention when the wording of this provision was agreedto in 2002. Many people have childcare providers who do not issue receipts. In this case, the mother relied upon family to providechildcare, which was needed for her to pursue employment.

Her evidence is that she made cash payments and paid household expensesto the childcare providers and thus incurred childcare expenses. [36] The mother did not claim childcare costs when she filed her Income Tax Returns. These returns were exchanged with thefather on an annual basis. The father had access to this information as well as being aware of the child’s advancing age. He did not takeany steps to question this expense until approached through counsel of the mother’s request for a contribution to the child’s post-secondary university expenses.

The father’s position is the mother has an obligation to tell them she was not incurring childcare costs. The mother’s evidence is that she was incurring childcare costs until John turned seventeen (17). The apparent agreement of the partiesnot to communicate with one another, except for the limited purpose of exchanging financial information, has led to this impasse.

Thefather has not satisfied me that he did not have possession of relevant facts respecting childcare because he agreed to fix childcareexpenses at $700.00 a month, he had Income Tax information available to him which indicated that the mother was not providingreceipts for childcare costs since she was not claiming this deduction, and he was aware of the child’s advancing age. [37] The mother was not incurring childcare expenses when the child turned seventeen (17). This is the age she allowed him to stayon his own when she was working.

The father’s contribution pursuant to the Consent Order were for childcare expenses only. Themother’s claim that she should be allowed to use some of the money paid by the father for childcare expenses for other

Section 7expenses is without merit. She would be required to give the father notice of these claims and the opportunity to respond, which has notbeen done. [38] The child has been well supported by the father’s financial contributions over the years but the mother has been his only parentand solely responsible for his upbringing and meeting all his needs. John has been diagnosed with a learning disability affecting hisorganization habits and which requires extra effort on his part and his mother’s

part in order for him to be successful academically. Itake judicial notice of the fact that a custodial parent is often called upon to pay for sudden and unexpected costs related to their childrenthat a non-custodial parent is not. During the time the father was paying his proportionate share of child care expenses, he had the abilityto pay without any apparent hardship to him. Requiring the mother to remit all child care costs paid by the father would impactnegatively on John’s current and future needs.

It would impact on his ability to complete his education and, therefore, cause himhardship. [39] The mother has not incurred childcare expenses since September, 2009. She should have notified the father that she was notincurring childcare costs at this time. In late 2009 or early 2010, she contacted the father through counsel seeking a contribution towardsher son’s post-secondary education costs. At this time, she had notice that the father was questioning the need for ongoing childcarepayments.

The child and/or the mother would not suffer a significant hardship given the continuing level of the father’s contributiontowards John’s ongoing maintenance and post-secondary education expenses. Therefore, I allow the father’s claim for a retroactivevariation of the childcare expenses. The effective date of the variation will be September 1, 2009. The father is to receive credit for anychildcare expenses paid from September 1, 2009 onward.

ISSUES 4 & 5 [ 40 ] At this time, John is still a dependent child as defined by

Section 2(

c) of the Maintenance and Custody Act , (supra). He is over the age of majority and unable to withdraw from the charge of his parents because of his pursuit of a university education. He has a learning disability which may or may not impact his graduation date. The issue of fixing a termination date is really a question of who will be required to make an application to vary if the parties are unable to agree in the future whether John is still a dependent child. Given John’s circumstances and the evidence of Dr.

Landry that he may continue to experience organizational difficulties in his 2 nd , 3 rd and 4 th years of university, I decline to fix a date for termination of child maintenance. [ 41 ] Because of the lack of communication between the parties, I will require the Order to include a number of conditions requested by the father, including: the mother notifying him in writing immediately of any change in John’s circumstances, such as leaving school, taking full-time employment, marriage or death. [ 42 ] Previously, I directed that the mother provide the father with receipts relating to the post-secondary education expenses, to which she is seeking a contribution, John’s school transcripts, John’s Income Tax Returns and T4 slips.

I have also directed that should John be able to obtain employment, he is to contribute financially to his post-secondary education costs. [ 43 ] The father has requested the ability to claim John’s post-secondary education expenses for Income Tax purposes. However, this is a right John has to claim for himself or transfer to a parent. Therefore, I deny the father’s request. J.