Penney v. Simmons, 2016 NSSC 277

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Penney v. Simmons , 2016 NSSC 277 Date: 2016-10-19 Docket: SFSND No. 1206-4845 Registry: Sydney Between: Ronald Penney Applicant v. Beverley Simmons Respondent Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: August 12, 2016, in Sydney, Nova Scotia Written Release: October 19, 2016 Counsel: Ronald Penney, Self-represented Applicant Beverley Simmons, Self-represented Respondent By the Court: [ 1 ] This is Mr. Penney’s application to vary his child support obligations under a 2006 Corollary Relief Order (CRO).

The application raises a number of issues: When is a parent required to pay support for an adult child? Does support automatically terminate at a particular age? Or when a child obtains their undergraduate degree? What are a parent’s obligations when their adult child pursues a post-graduate degree? FACTS [ 2 ] The parties were divorced in 2006. Their two children remained in the primary care of Ms. Simmons. Mr. Penney was entitled to reasonable access at reasonable times, on reasonable notice. He was required to pay monthly child support of $479.00 based on his income of $31,950.00.

He was also required to contribute 51% of

section 7 expenses, and to maintain health plan coverage for the children. [ 3 ] The children are now 24 and 20 years of age. Mr. Penney asks the court to terminate support for his older daughter C.B.P., and to set an end date for support of his younger daughter K.R.P. [ 4 ] Ms. Simmons filed a response to the variation application on May 17, 2016. She asks the court not to terminate support for either child, and to enforce Mr. Penney’s obligation under the order to pay a proportionate share of the children’s educational and healthcare expenses, both retroactively and going forward. ISSUES 1.

Is there a material change of circumstances sufficient to justify variation of the 2006 order? 2. Has the older child’s status as a dependent “child of the marriage” changed? If so, when? 3. If the oldest child’s status has not changed, what support should Mr. Penney pay? 4. Should a termination date be set for support of the younger child?

5. Are there s. 7 arrears owing? Issue #1 - Is there a material change of circumstances sufficient to justify variation of the 2006 order? [5] Mr. Penney applies for variation under s.17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He therefore bears the onus ofproving a material change in circumstances sufficient to justify a change to the CRO. Although Mr. Penney filed an affidavit, did notspecifically outline what material change had occurred since 2006. However, he did note that his older daughter C.B.P. is now 24 yearsof age. The evidence discloses that she is pursuing a medical degree at St.

James Medical School in Anguilla. [6] I accept that C.B.P.’s age and post-graduate educational pursuits constitute a material change in circumstances since the CROwas issued. Issue #2 - Has the older child’s status as a “child of the marriage” changed? If so, when? [7] Mr. Penney argues that he is not in an income bracket where he should be expected to support C.B.P. through a post-graduate program. He asks the court to terminate support for C.B.P. effective on her 24th birthday (February, 2016). [8] Ms. Simmons asks the court to find that C.B.P. is still a dependent child for whom support should be paid.

She wants Mr.Penney to support C.B.P. until she completes her medical degree. [9] The Divorce Act defines a child of the marriage for whom support must be paid as: "child of the marriage" means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from theircharge or to obtain the necessaries of life; [10] In Nova Scotia, the age of majority is nineteen. C.B.P. is now 24 years of age. In order to meet the above definition as an adult,C.B.P. must be unable to withdraw from her parent’s charge by reason of illness, disability, or “other cause”.

Pursuing a post-secondaryeducation has long been recognized as another cause for dependency. [11] However, the question is whether pursuing a second degree or diploma, or a post-graduate degree, is “other cause” for beingunable to withdraw from parental support. No one case is exactly the same as another. Courts have to pick a point at which parentalsupport will end, on a case by case basis. Such determinations are factually based. [12] The Nova Scotia Court of Appeal in Martell v. Height (N.S.C.A.), 1994 NSCA 65 , [1994] N.S.J.

No. 120 stated: “As a general rule parents of a bona fide student will remain responsible until the child has reached a level of education, commensuratewith the abilities he or she has demonstrated, which fit the child for entry-level employment in an appropriate field.” [13] Mr. Penney does not contest his obligation to support his daughter while she pursued her undergraduate degree (and to age 24). In other words, he agrees that she was unable to withdraw from her parents’ support because she was pursuing a post-secondaryeducation. However, Mr.

Penney does object to paying support after age 24, while C.B.P. pursues post-graduate studies. [14] Various cases have enumerated factors to consider in determining whether a child is eligible for support while pursuing a post-secondary education. The factors apply equally to post-graduate programs, although the older a child and the longer they study, themore closely a court will scrutinize their program, their efforts to support themselves, and their progress. These factors include: 1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies. 2.

Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries orscholarships, and if so, the amounts received. 3. The ability of the child to contribute to their own support through part time employment. 4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoingeducational program because there is nothing better to do. 5.

In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of theproposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost ofthe course of study. 6. The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies. 7. The age, qualifications and experience of the child. 8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility. 9.

Whether the child is performing well in the chosen course of studies. 10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. Inconsidering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of theirchildren comparatively equally.

11. The means, needs and other circumstances of the parents and the child. 12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.

If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post- secondary education. [ 15 ] Having heard the evidence and read the affidavits, I find that: • C.B.P. is enrolled in medical school on a full time basis. • She borrowed money through student loans to pursue her undergraduate program, but was unable to access student loans for medical school.

She borrowed money under a line of credit to finance her first two years of medical school. • There is no evidence to indicate whether C.B.P. can work part time while pursuing her medical degree. However, medicine is a demanding field of study, and I have no evidence that she is legally entitled to work in Anguilla even if she had the time. She worked during her undergraduate program and is now working part-time while studying for her licensing exams. • C.B.P.’s career plan is reasonable. She fast-tracked her medical degree, starting medical school after her third year of undergraduate studies.

There is no evidence to suggest that she will be unsuccessful in her medical studies. The program is very expensive, but it will qualify her to work as a physician immediately after she completes her licensing exams. • C.B.P. is 24 years of age. She is a mature young woman who is clearly upset that her father does not wish to support her through completion of a medical degree. • C.B.P.’s academic performance allowed her to enter medical school early, without finishing her undergraduate program. Based on that, I conclude she will be able to successfully complete her medical degree.

There is no evidence to suggest that she is immature or irresponsible, and would squander this opportunity. • There is no evidence the parents discussed the children’s educations before the divorce or since. There is no education savings plan. • C.B.P. has borrowed monies to fund her studies through a line of credit which has reached its maximum allowable credit. Her mother has been paying the interest on the LOC, while she has been trying to pay on her student loan. Ms. Simmons works two jobs. Mr. Penney earns about the same as she does. He has the ability to generate more income through a rental property.

There is no evidence that Mr. Penney has any significant debt or is obliged to support any other dependents. • I am satisfied that if she is ordered to provide information regarding her marks and progress to her father, C.B.P. would do so. • C.B.P. terminated her relationship with her father after grade 10, but given the evidence from K.R.P. about difficulties in her relationship with Mr. Penney, I am not satisfied that C.B.P.’s decision was unreasonable or unjustified. • C.B.P. estimates that in total, it will cost at least $100,000.00 (USD) over the next two years to complete her medical degree and licensing.

This includes tuition, living expenses, travel and the cost of writing exams. [ 16 ] As the Court of Appeal recognized in Martell v. Height (supra) “… a bachelor’s degree no longer assures self-sufficiency.” C.B.P. is enrolled in a post-graduate professional program which virtually guarantees her a job, she has financed much of her studies herself, and she is pursuing her degree expeditiously. Considering all of the evidence, the legislation and the case law, I find that C.B.P. remains a child of the marriage for whom support must be paid.

Issue #3 - If the oldest child’s status has not changed, what support should Mr. Penney pay? [ 17 ] Mr. Penney says he cannot afford to pay support for C.B.P. He earned just under $40,000.00 last year, and he argues that he is not in the kind of income bracket which allows him to support his children through post-graduate studies. [ 18 ] In response, Ms. Simmons argues that Mr. Penney has more disposable income than his T4 suggests. She points out that Mr. Penney’s mother no longer lives in her home; she is in a senior’s facility. She believes that Mr.

Penney is renting his mother’s home, and does not report the income. [ 19 ] Mr. Penney acknowledges that he maintains his mother’s home. He arranged for a friend to live in his mother’s home so that it wouldn’t be empty. He says that he pays the upkeep himself, and charges no rent. He does not wish to sell the home so long as his mother is alive. [ 20 ] There is no evidence that Mr. Penney is authorized to sell or rent his mother’s home. Nor is there evidence to show that he is personally entitled to retain any rents collected. Income cannot be imputed to him from this source. [ 21 ] Ms.

Simmons also points out that Mr. Penney failed to file all appropriate financial disclosure for this hearing. He filed a sworn statement of income, with his T4 slips from 2014 and 2015, along with his notice of assessment from 2013. He did not provide copies of his tax returns for the past three years, or his notices of assessment for 2014 or 2015. [ 22 ] Failure to disclose income information, including tax returns, may suggest that a party is hiding income. The Supreme Court of Canada has described non-disclosure in family files as a “cancer”, which leads to delays and leaves courts grappling with how to

calculate a payor’s income for support purposes. [ 23 ] In this case, the evidence is clear that Mr. Penney has worked for the same employer for many years. His income is relatively stable. He earned overtime pay in past years, but last year earned none. If there is any income to be imputed, it would be that. But I cannot direct Mr. Penney to work extra hours, and I cannot impute income without some evidence that overtime work continues to be available to him (see White v White, 2015 NSCA 52 ). [ 24 ] For purposes of child support, I set Mr.

Penney’s income at $39,256.00 which is the figure reflected in his T4 slip for 2015. There is insufficient evidence to impute additional income to him. [ 25 ] Under the CRO, Mr. Penney was obliged to pay the table amount of support for two children based on his 2006 income. He has paid that sum without adjustment for income increases since the CRO was issued. He does not contest his obligation to pay support for C.B.P. until her 24 th birthday, which was in February, 2016.

He does contest payment of support thereafter. [ 26 ] Under the FCSG I can award child support based on the applicable table under s.3(2)(a), or based on the factors set out in s.3(2) (b). I find that the table amount is not appropriate where C.B.P. had left home and was living and studying in Anguilla in March, 2016. [ 27 ] An analysis under s. 3(2)(

b) is therefore necessary. I addressed the condition, needs and means of C.B.P. to contribute to her own support above. She has borrowed a significant amount of money to finance her studies, and she estimates that she will need at least $100,000.00 (USD) to complete her medical degree. She is a serious student who is not wasting this opportunity to advance her education. The problem is that her parents have limited means to assist her financially. Her mother works two jobs, and between both of her parents, they earn less than $90,000.00 per annum. [ 28 ] I am satisfied that as of March, 2016 Mr.

Penney’s obligation to pay child support should be limited to a reasonable contribution to C.B.P.’s university expenses. [ 29 ] The CRO states that Mr. Penney is to pay 51% of “any further extraordinary expenses” based on his “current income”. This wording suggests that the parties intended their contributions to reflect their changing income. The income of both parties has changed, but was less than $600.00 apart in 2015. Therefore the proportionate sharing will be based on 50% rather than 51%. [ 30 ] The CRO does not define what is included as “further extraordinary expenses”.

It expressly references orthodontics and a school trip, but not university expenses. However, the FCSG define the term “extraordinary expenses” as follows:

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [ 31 ] University expenses fall under this definition. However, Mr. Penney cannot be expected to pay 50% of the cost of C.B.P.’s program, estimated at $50,000.00 (USD) annually for the next two years. At a 50% contribution, he would be paying about 85% of his net income in child support for C.B.P., while still being obliged to support K.R.P. and paving his own living expenses. [ 32 ] Having considered the condition, needs, means and circumstances of C.B.P. and both of her parents, I direct that as of March 1, 2016 Mr. Penney will reimburse Ms.

Simmons 50% of the amount she paid for C.B.P.’s return flights between Anguilla and Sydney and Chicago to Anguilla to a maximum of $1,500.00 (his share) annually. [ 33 ] Ms. Simmons will provide proof of payment of C.B.P.’s airfare to Mr. Penney, and his contribution shall be paid to her within thirty days of receipt. [ 34 ] In addition, he will pay 50% of the interest Ms. Simmons has paid on C.B.P.’s line of credit since March 1, 2016. At that time, the interest was $321.31 per month. The interest rate may fluctuate, but the principal will not increase, as the LOC is at its limit. Mr.

Penney’s share is set at $160.66 per month. [ 35 ] The support for C.B.P. will continue so long as she is enrolled in medical school on a full-time basis (including clinical programs at associated hospitals and times when she is studying for and writing licensing exams). [ 36 ] C.B.P. will send Mr. Penney a copy of her program details, including fees, clinical rotation dates, her expected graduation date, and her marks from 2014 to date within thirty days. Thereafter she will provide him with her marks as they are released. She will immediately notify Mr.

Penney should she cease her full-time studies (other than for exams).

Issue #4 – Should a termination date be set for support of the younger child? [ 37 ] The younger daughter K.R.P. is enrolled in a BA program at Cape Breton University. She works part time in the store where her father works, and she lives with her mother. [ 38 ] Mr. Penney does not contest that K.R.P. continues to be a child of the marriage. He wants the court to set an end date for payment of support for K.R.P., after she graduates from CBU. Ms.

Simmons opposes this. [ 39 ] The cases are clear that child support does not automatically terminate after a child reaches a certain age, or when they attain an undergraduate degree. Each case turns on its own facts. K.R.P. is only 20 years old, currently in her third year of university. She has one year left in her undergraduate program, and then expects to pursue her B.Ed. Whether she pursues post-graduate studies remains to be seen. The cost of the program is unknown at this time. [ 40 ] Given the uncertainties with her future plans, I decline to set a termination date for K.R.P. I direct that Mr.

Penney continue to pay the table amount of child support for her based on his 2015 income of $39,256.00. This amounts to $328.00/month, effective March 1, 2016. [ 41 ] Mr. Penney will also be obliged to maintain his health plan coverage for both children for so long as the plan allows, and reimburse them for claims submitted and paid on their behalf within seven days. He will also provide Ms. Simmons with a copy of any statements from the insurer showing the amount paid for each child per claim. [ 42 ] For so long as support is payable for her, K.R.P. will provide a copy of her marks to Mr.

Penney each semester, along with proof of full-time enrollment in university. Issue #5 – Are there s. 7 arrears owing? [ 43 ] Mr. Penney doesn’t believe he was required to contribute to any of the children’s extraordinary expenses under the CRO. He insists that paying the premiums for his health plan is the extent of his obligation. According to Ms. Simmons, whose evidence I accept, he has only once paid towards the children’s medical expenses. [ 44 ] In the CRO, Mr. Penney was directed to pay set amounts towards the children’s orthodontic expenses and a school trip for the oldest child.

He was also directed to pay 51% of “any further extraordinary expenses”. Clearly this envisions more than payment of health plan premiums. [ 45 ] I accept C.B.P.’s evidence that her mother paid the following expenses on her behalf, and I find that these expenses are captured under the definition of extraordinary expenses in the CRO. I direct that Mr. Penney reimburse Ms.

Simmons 51% of the cost within thirty days: • Orthodontic expenses of $376.50. • Vision expenses of $669.50. • Dental expenses of $1068.60. [ 46 ] I decline to order any contribution to travel expenses for K.R.P.’s medical appointments in Halifax. This is covered under the table amount which Mr. Penney was paying. CONCLUSION [ 47 ] The parties have met with divided success. The reality for C.B.P. and K.R.P. is that they will have to borrow more monies to complete their studies. Neither parent is in a position to pay their post-secondary expenses. No doubt Ms.

Simmons will continue to assist to the greatest extent possible. She is rightly proud of her daughters and they are clearly grateful for her help. [ 48 ] Although neither child shares a good relationship with Mr. Penney, the blame for that does not rest solely with them. He must pay the amounts outlined above, and he will be entitled to information on the children’s studies. If that sharing of information leads to better communications between Mr. Penney and his daughters, that should be encouraged. [ 49 ] If either party wishes to be heard on costs, written submissions are due within thirty days.

MacLeod-Archer, J.