Citation: Van der Linden v. Rhynold, 2007 NSCA 72
Date: 20070613
Docket: CA 275596
Registry: Halifax
Between:
Andreas Julianus Van der Linden
Appellant
v.
Carol Christina Rhynold
Respondent
Judges: Bateman, Cromwell and Oland, JJ.A.
Appeal Heard: May 30, 2007, in Halifax, Nova Scotia
Held: Appeal allowed per reasons for judgment of Bateman, J.A.; Cromwell and Oland, JJ.A. concurring.
Counsel: Donald Macdonald, for the appellant
M. Louise Campbell, for the respondent
Reasons for judgment:
[1] In May, 2005 the respondent, Carol Christina Rhynold, applied to vary the child support provisions of the parties’ 1998 Corollary Relief Judgment (the “CRJ”). She asked that the amount of the child support be increased to conform with the Table Amount of the Federal Child Support Guidelines, SOR/97-175. The CRJ had provided for tax deductible child support of $200 monthly, payable by the appellant father to the respondent mother. The parties’ only child is in the joint custody of her parents, residing primarily with her mother, and is now 15 years old. The amount of child support was that agreed by the parties in a September 1996 separation agreement.
[2] By order dated November 29, 2006, Justice Walter R. E. Goodfellow of the Supreme Court varied the CRJ to provide that, effective September 15, 2006, the father pay monthly child support of $332 based upon a projected annual income of $33,000. The support would increase to $365 per month commencing on January 15, 2007 when the father’s income was projected to be $42,000.
[3] It is the following additional provision in the order which is the subject of this appeal:
5. The Respondent shall establish an education fund for the child, Ria Johanna Van der Linden, which funds shall be paid out of funds presently held by the Respondent’s Solicitor in his trust account. The Respondent shall pay a minimum of $12,000.00 forthwith to this education fund. The Respondent shall match the total amount in the child’s present education fund established by the Applicant within three years of the date of this Order. The Respondent may do this by further lump sum payment, so the total amount invested by him shall equal the total amount in the present plan established by the Applicant to the date that the Respondent makes the final lump sum payment. In the event that the Respondent chooses to make these additional payments by installments, he shall arrange to invest a sum of money on a short term basis, in the name of the child, with himself as Trustee so that the monies so invested can be placed in the education fund at a time that is most advantageous for the child’s education fund.
It is the intent that at the end of this three year period, the Respondent shall have matched all monies in the plan established by the Applicant in the education fund for the child to that date. The Respondent shall then be required to match all monthly payments made by the Applicant to the child’s education fund until such time as the Applicant is no longer paying into such education funds. It is the intent that at this time both parties shall have in their education plans for the child, Ria Johanna Van der Linden and equal amount of funds.
6. Both parties shall exchange full disclosure of their respective investments in educational funds.
[4] The father says the judge had no jurisdiction to make such an order.
[5] The judge’s reasons are reported as Rhynold v. Van der Linden, 2006 NSSC 260; [2006] N.S.J. No. 344 (Q.L.).
[6] The financial facts on record are somewhat complicated. It suffices to say that the father was a self-employed dairy farmer during the marriage and at the outset of the application to vary. During these proceedings he terminated his dairy operation by selling his milk quota and Holstein cattle. After retirement of related debt he netted about $324,000 from the disposal of these assets. He would have investment income from this fund. His future plan to earn income included working seasonally as an hourly rate farm hand; selling bales of hay from his farm; and raising Heifers. Financial disclosure by the father was problematic as was estimating his future income. The relationship between the parents was not good. Child support had been paid through the Maintenance Enforcement Program.
[7] After an initial hearing in January 2006, which was adjourned to obtain financial disclosure, the judge case managed the file over a period of months. The parties put their final submissions before the judge in letter form, agreeing that a resumption of the oral hearing was not necessary.
[8] In those submissions the mother requested a capital contribution by the father to the educational fund she had established for their child. The father was prepared to voluntarily contribute to an educational fund, as he was able, but asserted that the judge was without jurisdiction to order such a contribution over and above awarding child support in keeping with the Table Amount of the Guidelines.
[9] While the submissions to the judge resembled, in some respects, negotiations directed toward a consent resolution, no agreement was reached. The judge’s decision reveals that, notwithstanding the father’s indication that he would voluntarily contribute to an educational fund, he was of the view that such should be a court ordered obligation. He said:
[27] . . . With respect to the education fund request of Ms. Rhynold, his suggestion is that he deposit $5000.00 into a fund exclusively for his daughter’s benefit. He notes that he would be doing the same thing for his son [of another relationship]; which is an issue outside this application. The encouraging position is that stated in the penultimate paragraph of his solicitor’s letter to the court on July 19, 2006 “his intention would ultimately be to deposit an amount in the fund equivalent to that made by the applicant, as circumstances permit.”
[28] . . . I had the opportunity to observe Mr. Van der Linden in open court and he is a strong independent-minded individual, gifted with a work ethic. However, as admirable as that is in most circumstances, it seems to the court fit and proper, given the disposal of his major asset, to secure the minimum educational requirements of their daughter. ...
(Emphasis added)
[10] The judge did not identify the authority pursuant to which he ordered the establishment of and the ongoing contribution to the educational fund.
[11] The mother had requested that child support to and inclusive of the year 2011 be paid by lump sum rather than periodically. The judge considered this option and also the possibility of requiring that the father post security for the support. He rejected both options:
25 In the case before me, where there has been some confusion, there are no arrears of child support and certainly there is no indication that Mr. Van der Linden intends to leave the jurisdiction. In fact, although he has disposed of his major asset, the milk quota, he continues to own and operate his farm property and the circumstances here are not of such a nature that warrants the court ordering a lump sum of his funds to be posted by way of security.
[12] While the judge seemed to be of the understandable view that the past amount of child support paid was below reasonable, he did not suggest that the educational payment was a form of retroactive support, nor was such sought.
[13] An educational fund has occasionally been justified as an extraordinary expense within s. 7 of the Guidelines (see for example, McCrea v. McCrea, [1999] B.C.J. No. 1514 (S.C.) (Q.L.). Here, however, the mother did not seek a contribution to extraordinary expenses. Where such is sought, the court must consider the means of both spouses (Guidelines, s.7(1)). There was no information before the court about the mother’s income or other financial resources. The establishment of the fund was not ordered as an extraordinary expense. There was no analysis which would support such an award, even if otherwise permitted by law.
[14] Generally, post-secondary education expenses are addressed through a continuing obligation to provide child support rather than a prospective award (see, for example, Gaetz v. Gaetz, 2001 NSCA 57; [2001] N.S.J. No. 131 (Q.L.) (C.A.) and Bachorick v. Verdejo, [1999] S.J. No. 450 (Q.L.); 175 D.L.R. (4th) 633 (C.A.). It is unnecessary for us to determine whether circumstances may arise where a payor of child support can be ordered to set aside an amount for future educational or other expenses (see Pritchett v. Pritchett, [1996] B.C.J. No. 2704 (Q.L.)(S.C.) - pre-Guidelines; F. v. V., [2002] O.J. No. 3900 (Q.L.) (Ont. Sup. Ct. J.) and O.M. v. A.K. [2000] Q.J. No. 3224 (Q.S.C)). Here the judge did not find that there were unusual or exceptional circumstances that would warrant such an order. While his motivation in establishing the education fund is laudable, it is my respectful view that in so doing, the judge erred.
[15] I would allow the appeal and delete paragraphs 5 and 6 of the variation order of November 29, 2006. In these circumstances there shall be no costs.
Bateman, J.A.
Concurred in:
Cromwell, J.A.
Oland, J.A.