Supreme Court

IN THE SUPREME COURT OF NOVA SCOTIA

(FAMILY DIVISION)

Citation:  Niles v. Munro, 2010 NSSC 221      

Date: 20100610

Docket: 1201-56024

                                                                                                    Registry: Halifax

Between:

Michele Debra Niles

Petitioner

and

David Alexander Munro

Respondent

Judge:                   Justice Lawrence I. O’Neil

Heard:                  December 9, 2009, in Halifax, Nova Scotia

Counsel:               Stephanie Atkinson, for the Petitioner  

Shawn M. O’Hara, for the Respondent

By the Court:

Introduction

[1]     Following a pre-hearing application, the court rendered a decision pertaining to the child support and special expenses associated with the parties’ parenting of their older child (reported at 2009 NSSC 318).  The court found that it did not have jurisdiction to consider the Petitioner’s application at that time because the older boy was not a child of the marriage at the time it was filed.  The application involving the younger child Mark (D.O.B. January 17, 1990) remained for consideration.  Mark reached the age of 19 on January 17, 2009.

[2]              This family has had substantial earnings in recent years.  Mr. Munro’s line 150 income in 2008, as reported on his notice of assessment, was $191,743; for Ms. Niles, it was $97,629 and for their son Mark, $5,509.  In 2009, Mr. Munro’s employment ended and he was required to seek new employment.  Nevertheless, he is prepared to have his prospective obligations determined on the basis of his income to the date of the severance of his employment

Issues

[3]              The Petitioner seeks:

(a) arrears of child support for Mark;

(b) an assessment of the Respondent’s contribution to Mark’s university education, and

(c) a determination of the Respondent’s ongoing child support for Mark.

A number of other issues emerged in the course of counsel’s argument and were left with the court.  The issues to be decided are:

1.         Whether the court should exercise its discretion to not order a child support underpayment of $6,291, to be now payable by the Respondent - this applies to the period commencing May 31, 2005 and ending August 31, 2008.

2.         Whether child support should be paid to the Petitioner for the summer of 2009, when Mark was living at home with his mother.  This is calculated as $6,024 (four months).

3.         Whether the Respondent should be required to pay the full table amount of child support for Mark for the months of December 2008 and April 2009 because Mark is alleged to have spent significant periods of time with his mother during these months; this amounts to 2 x $1,506/month = $3,012.

4.         Whether the Respondent should be required to pay one half the table amount of child support while Mark is living away at university for the other six months, this amounts to 6 months x $753 = $4,518.

5.         Whether Mark should be assessed an amount derived from summer employment, as his contribution to his university costs.

6.         Whether Mark should be required to spend his university “savings” account before his parents are required to contribute to his educational costs.

7.         Whether Mark should be required to sell his Emera shares to meet his university expenses.

- Child Support Guidelines

[4]              Herein, the Federal Child Support Guidelines, P.C., 1997-469 are referred to as the Child Support Guidelines.  The Child Support Guidelines establish child support tables and these are referred to as “the tables” or some obvious modification of this description.

[5]              Section 3(2) of the Child Support Guidelines permits the court to deviate from the Child Support Tables when a child of the marriage is over the age of 19 and the court considers the application of the tables to be 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 support of the child”.  A child support order for a child over 19 may not require any child support in certain circumstances.  This might be the case when a child is at university and contributions are being made in the form of education assistance.   Sub sections 3(1) and (2) provide:

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.

[6]              Clearly, once a child reaches the age of majority, a greater degree of court scrutiny of the child’s need is mandated than for a child under the age of majority.  Such a change in approach is understandable given the desirability of holding young adults accountable; demanding financial responsibility from them and demanding that these young adults contribute to meeting their needs.  Coincidental with a parent’s desire to demand more independence of their children, young adults are often clear in demonstrating independence from their parents.

[7]              Nevertheless, jurisprudence requires a balancing of society’s interest in ensuring young adults maximize their educational opportunities; that young adults demonstrate responsibility and that parents be afforded some discretion to limit their financial obligations to adult children.  There are legitimate non financial reasons a parent may want to limit assistance to an adult child.  Provided the explanation is reasonable, a court should show some deference  to a parents’ point of view.  An adult child who remains “dependent” need not typically be viewed as without resources to help himself.  That is particularly true of young adult children attending university, persons who by virtue of their status as university eligible students have achieved a level of success and presumably possess personal resources to assist them in meeting their financial needs.

[8]              The parties have asked the court to determine what contribution each parent must make to the cost of their son’s university education.  This requires the court to determine his financial need.

[9]              Section 7(1)(e) of the Child Support Guidelines provides as follows:

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; and

. . . . .

[10]         Sections 7(2) and (3) of the Child Support Guidelines require that the s.7 expense be shared proportionately between parents and that the amount of the expense be determined after considering subsidies and tax benefits, etc.  Section 7(2) also requires the court to deduct, “from the expense, the contribution if any, from the child”:

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.

Issue 1 - Should the Respondent be directed to now pay the amount by which he underpaid child support between May 31, 2005 and August 31, 2008?  The parties agree that he paid less than the straight table amount.

[11]         Ms. Niles seeks the payment of $6,291 as retroactive child support.  Mr. Munro argues that this is a case where the court should not apply the tables given all of the circumstances, but particularly, the support Mr. Munro did pay during this period.

[12]         Ms. Atkinson, in her pre-hearing brief, calculated the unfulfilled obligation between May 31, 2005 and August 31, 2008 as follows:

[13]         The claim for retroactive child support for the period after Mark began university is discussed under a separate heading.

[14]         Mr. O’Hara, on behalf of Mr. Munro and Ms. Atkinson on behalf of Ms. Niles (in their pre-hearing briefs), have a slightly different result, as the amount  underpaid but agreed in oral argument the total was $6,291.00.  

[15]         Section 4 of the Child Support Guidelines also provides that a child support order may be in an amount different than the table amount where, “the income of the spouse against whom a child support order is sought is over $150,000" if certain conditions exist.  Section 4 provides as follows:

Incomes over $150,000

4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

[16]         This provision is triggered on the facts before the court.  For those periods for which child support is found payable, I have not concluded that a deviation from the tables as provided for by section 4(b) is warranted.  I can not conclude that the table amount is inappropriate.  Nor, do I exercise my discretion to not order the payment of this retroactive amount.  I have no satisfactory basis for doing so. 

[17]         I agree that Mr. Munro is not guilty of blameworthy conduct and that he was honest and responsible in his efforts to meet his child support obligations.  Nevertheless, over the three plus years commencing May 31, 2005 an underpayment did accrue.

Issue 2 - Should child support be paid to the Petitioner for the summer of 2009

[18]         The parties agree that the table amount of child support is payable for this four month period at the rate of $1,506/mth for a total of $6,024.  I order Mr. Munro to make this payment on or before July 1, 2011.

Issue 3 - Should the full table amount of child support be payable for December 2008 and April 2009?

[19]         The court takes the view that the Respondent, by virtue of his contribution to the university costs of Mark, including the cost of room and board at a Halifax university, has met his obligation to support Mark for the period beginning September 2008 and ending April 2009, inclusive.  The court recognizes that a student typically is not at university for parts of December and April.  However, the court is not satisfied that the cost of Mark being with either parent during these months was atypical.  The court is satisfied that Mark was with each parent for periods of December 2008 and April 2009 and the parents bear whatever costs are associated with that reality.  The court is not satisfied that either parent was burdened by his presence.

[20]         In Scott v. Scott, 2004 NBCA 99, the New Brunswick Court of Appeal ordered child support of $1,400 per month from May to August when the child was not at university and her room and board were not being covered through the post-secondary university claim.  The court also ordered a proportionate sharing of the annual cost of university.  The father earned $259,000 per year.  The total cost of university was $19,500 and $2,500 was deducted as the child’s contribution from summer earnings.  These support figures and s.7 expenses have similarity to those the parties herein are subject to.

Issue 4 - Should the half table amount of child support be payable for September-November 2008 and January-March 2009?

[21]         Not all parenting expenses can be the subject of a court order requiring the other parent to cost share.  It is not reasonable for parents to be asked to contribute twice for a child’s weekend living costs.  In this case, Mark’s room and board for residence life was paid and the Petitioner argues she too should receive one half the table amount of child support because Mark spends weekend time with her.  If his presence is becoming financially significant for the Petitioner, then he should be told to decide where to live.  In addition, I am satisfied that Mark also spent week-end time with his father.

[22]         For the period of the university academic year, September-April, I am not prepared to order both child support and a proportionate sharing of university costs, which costs include room and board in a university dormitory in the same town where the parties live, i.e. Halifax. 

[23]         In Provost v. Marsden, 2009 NSSC 365, counsel proposed that child support would be payable over the summer, i.e. between semesters while the child was living with a parent but not if the child was living elsewhere.  I accepted counsel’s submission.  It was an obvious and fair recommendation and one that I will apply here.  Counsel in that case also recommended that during the school year, either child support or the parents’ proportionate sharing of the university expenses for a child was a fair resolution of the child support/special expense issue.  I was also in agreement with that suggestion and apply it.  In that case, the child lived away at university.  In the language of s.3(2) of the Child Support Guidelines, a straight application of the Guidelines would be “inappropriate”.

Issue 5 - What is Mark’s obligation to contribute to his university expenses?

Issue 6 - Must Mark’s university account be dedicated to university expenses?

Issue 7 - Must the value of the Emera shares be dedicated to university expenses?

[24]         As stated, Mark has an obligation to contribute to the cost of his post-secondary education.  It is incumbent upon the court to inquire whether he is making a contribution and I suggest to determine what share of the expenses or what contribution, if any, should be attributed to him.  There are many reasons a child may not contribute or can not do so.  However, as a general principle, parents can, as a matter of law, correctly have an expectation of an adult child, that the child will contribute to the cost of his post-secondary education.

[25]         The inquiry to determine the adult child’s contribution, herein, focuses attention on two assets that “belong” to Mark.  One is an education account established for Mark.  Apparently, his mother deposited, at times, the child tax credit into this account.  Others have also made deposits to it.  The second asset consists of shares in Emera, a Nova Scotia energy company.  I am satisfied that this account was established and these shares were purchased by the family for the purpose of funding Mark’s education.

[26]         The Emera shares must be considered as a contribution, reducing Mark’s total university costs.  Their value must be apportioned in some way over the time period of his undergraduate degree, thereby reducing the amount of the s.7 expense to be apportioned between the parents.

[27]         The education account must also be spent by Mark on his education.  The question is whether its value should be considered a contribution by his mother or by him.  If a contribution by his mother, the value is not deducted from Mark’s total need but credited to her as part of her proportionate share of Mark’s unmet financial need.

[28]         If the only evidence I had was that the fund was established solely by his mother with her funds, I would treat it as part of her proportionate sharing of the education expense.  However, I do not have an evidentiary basis to make this conclusion.  Rather, I am satisfied that many gifts to Mark were deposited to this account from time to time.  The money in the account is/was the property of Mark and therefore his property and the amount of the s.7 expense to be apportioned between the parents will be determined after this amount is deducted.

[29]         Conclusion

1.         The retroactive amount of child support for the period ending August 21, 2008 is payable to Ms. Niles.  It is agreed that this amounts to $6,291.  This is ordered to be paid by him by December 31, 2010.

2.         Mr. Munro agrees to pay child support in the amount of $6,024 (4 x $1,506) for the period May to August 2009 inclusive.  This is ordered to be paid by him by July 1, 2011

3.         I conclude that Mr. Munro contributed $10,856 towards the first year cost of Mark’s university education.  This meets his s.3 and s.7 child support obligation for the 2008-2009 university year.  No other child support is payable by Mr. Munro for the period September 2008-April 2009 inclusive.  Mark was in full time attendance at university during this period.  Time he spends with each parent during this period is incidental to his university education.

4.         The value of the Emera shares are to be part of Mark’s contribution to the cost of his under graduate university education.

5.         The education account is to be considered part of Mark’s contribution to the cost of his under graduate education.  Although Ms. Niles did contribute to the account, the evidence does not permit me to separate out her contribution.  Consequently, I will not.  The account value is set at $5,574.97.

6.         Mark should be presumptively assessed a contribution from summer earnings of 70% of his take home pay.  This takes into account his likely eligibility for a refund of income taxes paid.  When he is living at home and the parents will be absorbing his living costs, this should be manageable for Mark.  Should he be living “on his own”, his contribution is set at 25 percent of his take home pay.

7.         The parents have agreed to proportionately share Mark’s tuition cost after his contribution is deducted.   Over the course of his degree, that contribution shall include the savings from summer employment; the proceeds of the education account and an amount equivalent to the Emera shares.  In addition, they have agreed to proportionately contribute $1,500 each month to Mark during the university year, i.e. September to April inclusive, commencing January 2010.  I order that they do so.  This global amount will cover his so called living expenses.  He must manage this amount and prioritize his spending.

8.         That portion of the tuition credit which is unused by Mark shall be shared between the parents on an alternating basis.  Over the course of a four year program, each parent will receive the credit remaining after alternating years.  If Ms. Niles has already used it for years 1 and 2, Mr. Munro shall have the benefit of it for years 3 and 4.  This direction, of course, is subject to Mark’s cooperation.  Should he be unwilling to cooperate, he risks foregoing the financial assistance of the parties.

J.