Court File and Parties

COURT FILE NO.: 31940/09-01

DATE: 2014-12-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KATHRYN ANN PENN, Applicant

AND:

DAVE LESLIE PENN, Respondent

BEFORE: Coats J.

COUNSEL:
Catherine A. Haber, Counsel for the Applicant

Sarah M. Boulby, Counsel for the Respondent

HEARD: May 13, 2014, August 14, 2014 and September 25, 2014

ENDORSEMENT

[1] This motion to change was argued before me on May 13, 2014, August 14, 2014 and September 25, 2014. On September 25, 2014 I reserved my decision. This Endorsement reflects my decision.

A. Issues:

[2] On this Motion to Change, the Applicant is seeking the following relief as set out in the Amended Schedule A to the Motion to Change:

1. An Order that the Respondent contribute to the post-secondary educational and related expenses for the children, Megan Penn, born February 12, 1990, and Alison Penn, born November 3, 1992, pursuant to paragraph 8 of the Order of Justice Coats dated September 17, 2010, as follows:

a) Commencing May 1, 2014, the Respondent shall pay to the Applicant $3,740.62 per month US dollars for the child, Megan Penn, for 15 months. b) Commencing May 1, 2014, the Respondent shall pay to the Applicant $1,333.00 per month Canadian dollars, for the child, Alison Penn, for 15 months.

2. An Order that the Respondent forthwith pay to the Applicant a lump sum of $13,109.30 US on account of the Respondent’s obligation to contribute to the children’s special and extraordinary expenses, including post-secondary educational expenses pursuant to paragraph 8 of the Order of Justice Coats dated September 17, 2010 for the period prior to May 1, 2014.

3. An Order that the Respondent pay to the Applicant for the child, Alison Penn, for so long as Alison remains a “child of the marriage” and is living away from home to attend a post-secondary educational institution, 60 per cent of the full Table amount of child support for one child.

4. An Order for costs on a full recovery basis, plus HST.

5. Such further and other relief as this Honourable Court deems just.

[3] The Applicant made it clear that she was only willing to agree to a reduction in the base child support (para 3 of Amended Schedule A) if the Respondent was ordered to pay the post-secondary educational and related expenses as set out in paras. 1 and 2 of Amended Schedule A.

B. Relevant Background:

[4] The parties were married on July 27, 1984 and separated on January 27, 2008. They have two children, Megan Penn born February 12, 1990 and Alison Penn born November 3, 1992.

[5] The Applicant has been employed at the Royal Bank of Canada (“RBC”) since 1975. She began working part time in 1989. She has been in her current position at RBC for over 10 years and although it is designated as part-time, she works more than part-time hours.

[6] The Respondent is also employed at RBC. He is a Senior Manager/Director.

[7] Subsequent to the separation, the Applicant commenced proceedings pursuant to the provisions of the Divorce Act and the Family Law Act. The proceedings settled by way of Final Minutes of Settlement, the terms of which were incorporated into my final order dated September 17, 2010. The final Order provides, inter alia, for the financial support of the parties’ two children.

[8] The relevant provisions of the final order dated September 17, 2010 are paras 4 to 8 inclusive which provide as follows:

4. Commencing October 1, 2010, the Respondent shall pay to the Applicant child support for the two children Megan Penn born February 12, 1990, and Alison Penn born November 3, 1992, in the sum of $3,076.50 per month, based on an income of $303,000.00. The said child support is the Table amount for one child plus one-half of the difference between the Table amount for one child and the Table amount for two children. The Respondent shall continue to pay child support to the Applicant in the amount equal to the Table amount for one child plus one-half of the difference between the Table amount for one child and the Table amount for two children until neither child qualifies as a “child of the marriage”.

5. Once a year, if there is a change in the Respondent’s income, either party may seek to adjust the amount of child support payable, but said child support shall continue to be based upon the Table amount for one child plus one-half of the difference between the Table amount for one child and the Table amount for two children, even if only one child qualifies as a “child of the marriage”.

6. On or before May 1st of each year, commencing May 1st, 2011, each party shall provide to the other a complete copy of their Income Tax Return for the previous year. Within 15 days of the receipt of the same from CRA, each party shall provide to the other a copy of their Notice of Assessment/Reassessment.

7. If either child interrupts her schooling but returns to school before she is 24 years old, then such child shall qualify as a child of the marriage upon her return to school.

8. The Respondent shall contribute to the children’s special and extraordinary expenses in a ratio proportionate to the parties’ incomes. As of the date hereof, the Respondent’s income for child support purposes is $303,000.00 and the Applicant’s income for child support purposes is $61,097.00. For the purposes of determining each party’s proportionate share, any spousal support paid to the Applicant shall be included in the Applicant’s income and any spousal support paid by the Respondent to the Applicant shall be deducted from the Respondent’s income. The children’s special and extraordinary expenses shall include, but not be limited to, any post-secondary educational costs of the children, including residence (if any), tuition, fees, registration fees, meal plan (if any), books, transportation, cell phone, computer, internet access, and any other incidental expenses, net of RESP funds.

[9] Megan is attending a Master’s Degree program at George Washington University in Washington, D.C. She commenced this program in August of 2013. It is a full-time two year program. Megan will obtain a Masters of Political Security degree.

[10] Before entering George Washington University Megan completed four years of her undergraduate BA Degree at York University. She obtained her BA Degree in 2012.

[11] Alison commenced her attendance at Guelph University in September of 2011 on a full-time basis. In September of 2013, Alison entered her third year of a four-year BA program. Alison is studying Sociology/History.

C. Law and Analysis

[12] The following are the questions to be answered:

1. Is Megan still a child of the marriage as defined in the Divorce Act or did she cease to be a child of the marriage when she completed her undergraduate degree in May of 2012? If she is still a child of the marriage, has there been any material change in circumstances, which would justify any change in the base amount of child support? If she isn’t and given that Alison resides in Guelph during the school term, has there been any material change in circumstances, which would justify any change in the base amount of child support?

2. If Megan is still a child of the marriage should the Respondent be obligated to pay his proportionate share of her educational expenses in the United States? Or should his contribution be limited to those at a Canadian University?

3. What are Alison’s educational expenses?

4. What are the Applicant’s and Respondent’s incomes for the purposes of proportionate sharing of education expenses for Alison or for Megan and Alison, depending on the answers to the questions above with respect to Megan?

[13] First, to deal with the base amount of child support. In my view, there is absolutely no change in circumstances which would justify a change in the base amount of child support payable by the Respondent to the Applicant. This is not dependent in any way on a finding as to whether Megan remains a child of the marriage as defined in the Divorce Act. The parties agreed in their Minutes, the terms of which were included in the final Order, that the Respondent would continue to pay child support in an amount equal to the Table amount for one child plus one-half of the difference between the Table amount for one child and the Table amount for two until neither child qualifies as a “child of the marriage.” There is no doubt that Alison remains a child of the marriage. This was the parties’ deal. This is what they agreed to. This is reinforced by para 5 of the Order which provides that if there is a change in the Respondent’s income either party may seek to adjust the amount but it will continue to be based upon the Table amount for one child plus one-half the difference between one child and two. The fact that Alison lives away from home to attend school is also not a change in circumstances as para 8 of the final Order clearly contemplates educational costs including residence (if any), meal plan (if any) and transportation, which would only be relevant if a child lived away from home while attending school. In my view, absent consent to change the base amount, which I will deal with below, there has been no change in circumstances justifying a variation. Para 4 of the final order is not linked to the residency of the children. The link is to at least one child qualifying as a child of the marriage and without doubt, Alison does.

[14] This outcome is consistent with the decision in De Hoog v. Cojbasic 2011 CarswellOnt 2190 (ON.S.C.) where Johnston J. dealt with the issue of whether child support should be suspended when the child is attending school away from home. The father had argued that pursuant to section 3(2) of the Federal Support Guidelines, the Court should consider an amount less than the amount determined in accordance with the Guidelines. Paragraphs 62 and 63 of De Hoog v. Cojbasic provide as follows:

62 I find as a fact that Vanessa attending Queen’s University from September to April each year is not a material change in circumstance, justifying reduction of Table amount of child support. Again, I place significant reliance upon the parties negotiated Minutes of Settlement in June, 2008 and further approval of the Minutes of Settlement into a Final Order, June, 2009. The Minutes of Settlement and Order both specifically contemplate Vanessa attending university, as outlined in the previous discussion upon the issue of how much contribution Father should make towards Vanessa’s university costs. Given the parties specifically turned their minds in the agreement to university expenses and did not suspend ongoing basic support for Vanessa while she would be attending university, is strong evidence the parties intended the Guideline amount of support would be payable by the Respondent in addition to $8,000 per year towards her tuition and other university expenses. Given the parties reside in the Ottawa area at the time of the separation agreement; it is logical that the parties expected Vanessa would reside away from home while attending school.

63. For all of these reasons, I find no material change in circumstance and there should be no change in the Table amount of support payable for Vanessa, even while she is attending Queen’s University. The court obviously would have come to a different conclusion if Vanessa does not otherwise maintain a residence with the Applicant while not attending university. However, the evidence in this motion is that Vanessa resides with her mother while not living in Kingston for purposes of attending Queen’s University.

[15] This is the same as the situation before me. The Minutes and final Order clearly contemplate Alison attending university and did not suspend ongoing base support if she lived away from home to attend university. The Order clearly contemplated the possibility neither child could be residing full time with the Applicant and the continuance of the base child support. It is clear Alison continues to spend time with the Applicant in the Applicant’s residence. The uncontroverted evidence is that Alison comes to her mother’s home almost every week and lives with the Applicant when not in school.

[16] This outcome is also consistent with Willick v. Willick 1994 28 (SCC), 1994 CarswellSask 48 (S.C.C.). Proof of a material change in circumstances is a prerequisite to a variation under s. 17(4) of the Divorce Act. As set out at para 22 “This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation.” This is also set out at para. 33 of L.M.P. v. L.S. (Droit de la famille) 2011 SCC 64, 2011 CarswellQue 13698 (S.C.C.).

[17] In the final Order the parties clearly contemplated only one child being dependent and clearly contemplated the base amount of child support continuing even if one or both children were living in residence while at university. These changes do not constitute a material change. They were anticipated by the very terms of the Order.

[18] Second, is Megan still a child of the marriage? At this stage of the analysis the issue is not her attendance at a school in the United States but rather her enrollment in a Masters Program.

[19] The definition of child of marriage in the Divorce Act is in section 2(1) and provides as follows:

2. (1) In this Act,

“age of majority”, in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;

“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 their charge or to obtain the necessaries of life.

[20] There have been many cases in which courts have found children to be “children of the marriage” when the children are enrolled in a post-graduate course. In C.(J.) v. M. (A.M.) 2007 CarswellOnt 6512 (ON.S.C.), Mazza J. found a child to be a child of the marriage while the child went to medical school. The Court considered factors such as the parties’ careers, the parties’ expectations for their children, the parties’ education and that the decision was not contrary to the parties’ wishes.

[21] At para 42 of Renouf v. Bertol-Renouf 2004 CarswellAlta 1630 (Al.Q.B.) Johnstone J. made reference to a second or third degree as follows:

It appears from all of the foregoing that if the child’s plan is rational and attainable, the child appears to continue to be economically dependent in fact, and the parents would have encouraged the educational goals if they had stayed together, the child is likely to be found to continue to be a child of the marriage in pursuing a second or even third degree. However, as a child becomes older and better educated, the onus of proving dependency grows heavier.

[22] I am mindful of the onus as stated in the final sentence of this paragraph.

[23] The factors to consider in determining whether a child pursing her Master’s remains subject to parental control are set out at paras 37 – 41 inclusive of Oates v. Oates 2004 CarswellOnt 2878 (ON.S.C.) as follows:

... (continues verbatim exactly as in the source) ...

D. Conclusion:

[66] In conclusion, I make the following order:

1. An Order that the Respondent contribute to the post-secondary educational and related expenses for the children, Megan Penn, born February 12, 1990, and Alison Penn, born November 3, 1992, pursuant to paragraph 8 of the Order of Justice Coats dated September 17, 2010, as follows:

a) Commencing May 1, 2014, the Respondent shall pay to the Applicant $3,740.62 per month US dollars for the child, Megan Penn, for 15 months.

b) Commencing May 1, 2014, the Respondent shall pay to the Applicant $1,333.00 per month Canadian dollars, for the child, Alison Penn, for 15 months.

2. An Order that the Respondent forthwith pay to the Applicant a lump sum of $13,109.30 US on account of the Respondent’s obligation to contribute to the children’s special and extraordinary expenses, including post-secondary educational expenses pursuant to paragraph 8 of the Order of Justice Coats dated September 17, 2010 for the period prior to May 1, 2014.

3. An Order that the Respondent pay to the Applicant for the child, Alison Penn, for so long as Alison remains a “child of the marriage” and is living away from home to attend a post-secondary educational institution, 60 per cent of the full Table amount of child support for one child, which is $1,452 per month, commencing May 1, 2014.

4. Support Deduction Order to issue.

5. If the parties are unable to resolve the issue of costs the Applicant may serve and file costs submissions, limited to three pages double spaced with costs outline attached within 30 days of today, the Respondent may serve and file responding costs submissions, limited to three pages double spaced with costs outlined attached within 60 days of today and the Applicant may serve and file reply submissions two pages double spaced, within 75 days of today.

Coats J.

Date: December 10, 2014