COURT FILE NO.: FS-15-243
DATE: 2015-09-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHARLES WILLIAM BISHOP
Self-represented
Applicant
- and -
REBECCA McKINNEY
Not appearing
Respondent
HEARD: May 25, 2015,
at Brampton, Ontario
Price J.
Reasons For Provisional Order
(Pursuant to s. 18 of the Divorce Act)
NATURE OF PROCEEDING
[1] Charles Bishop ("Mr. Bishop") would like changes made to the support he is required to pay to his former spouse, Rebecca McKinney ("Ms. McKinney"), on the ground that Ms. McKinney has re-married and their children have left her home, one to attend university, and the other to reside with Mr. Bishop. Because Mr. McKinney lives in Ontario and Ms. McKinney lives in New Brunswick and will not attend in or recognize the jurisdiction of the court in Ontario, Mr. Bishop applies to this court for a provisional order pursuant to sections 18 and 19 of the Divorce Act, which permits the court in the applicant spouse's province of residence to make a provisional order, to take effect only if confirmed by the court in the respondent spouse's province of residence. The legislative regime set out in sections 18 and 19 is intended to relieve the unfairness that would result if a spouse were unable to obtain a variation of an order because the other spouse is residing in another province.
BACKGROUND FACTS
[2] Mr. Bishop is 53 years old (born May 5, 1962). He has been a resident of Guelph, Ontario, since July 2007.
[3] The reasons of Justice Bruce A. Noble of the Court of Queen's Bench of New Brunswick, Family Division, for the Judicial District of Saint John dated February 2, 2009, were filed in this proceeding, and disclose the following:
a) Ms. McKinney was 53 years of age (born July 30, 1961) when Mr. Bishop's motion was heard. She resides in Lower Greenwich, in the Judicial District of Saint John, New Brunswick.
b) Mr. Bishop and Ms. McKinney were married on November 19, 1983, and separated after 20 years and four months, on March 18, 2014.
c) Ms. McKinney (then Ms. Bishop) filed a petition for divorce on August 29, 2005. She sought, in addition to divorce, spousal support, sole custody of the four children of the marriage, and child support based on the Child Support Guidelines. Ms. McKinney acknowledged that Mr. Bishop was already paying child support in the amount of $300 per month.
d) On November 10, 2005, Mr. Bishop filed an Answer and Counter-Petition in which he sought joint custody of the children and reasonable access to them. He asserted that Ms. McKinney had received an unequal share of the marital property upon the parties' separation, and asked that the greater amount she received be considered in lieu of spousal support.
e) Ms. McKinney filed a motion in the Court of Queen's Bench in New Brunswick on December 5, 2008, in her divorce proceeding, in which she sought, in effect, temporary child and spousal support.
f) By the time Ms. McKinney's motion was heard on February 2, 2009, three of the parties' four children were residing with Ms. McKinney and one was residing with Mr. Bishop. Justice Noble found that Mr. Bishop was earning an income of $78,007.00. Based on the Child Support Guidelines, he ordered Mr. Bishop to pay child support in the amount of $1,479.11, intended to be $493.04 for each of the three children who were then residing with Ms. McKinney. Justice Noble made the support retroactive to the date of the filing of the Notice of Motion.
g) Because the parties' eldest child was residing with Mr. Bishop, Justice Noble ordered that the support Mr. Bishop paid to Ms. McKinney for the three children who were residing with her would be offset by $92.53 that she would pay to him for the child who was residing with him. This amount was based on the child support for one child based on Ms. McKinney's income of $13,456 under the New Brunswick version of the Federal Child Support Guidelines.
h) Justice Noble found that there was uncertainty as to the "condition, means, needs or other circumstances of each spouse", and deferred the assessment of the amount of spousal support pending a trial.
[4] On February 18, 2013, Mr. Bishop and Ms. McKinney consented to a final order by Justice Noble. The order required Mr. Bishop to pay the following support to Ms. McKinney based on Mr. Bishop's annual income of $82,950 in 2012 and Ms. McKinney's annual income of $8,596 "dependent on the living arrangements of the children":
a) Spousal support in the amount of $1,424 per month;
b) Child support in the amount of $1,505 per month for the two remaining children of the marriage, namely:
i) Hannah Lynn Bishop, born August 3, 1994;
ii) Mark Charles Bishop, born March 26, 1996;
c) Retroactive spousal support in the amount of $110,918;
[5] The amount of retroactive support was calculated as follows:
a) August 1, 2005 – October 1, 2006 (15 months, 4 children residing with Ms. McKinney: $1,040 per month) = $15,600;
b) November 1, 2006 – September 1, 2010 (47 months, 3 children residing with Ms. McKinney: $1,210 per month) = $56,870;
c) October 1, 2010 – December 1, 2012 (27 months, 2 children residing with Mr. McKinney: $1,424 per month) = $38,448.
[6] On April 9, 2015, Mr. Bishop caused an Application to be issued in this court in which he seeks an order, pursuant to sections 18 and 19 of the Divorce Act[^1] and the Family Orders and Agreements Enforcement Assistance Act,[^2] varying Justice Noble's order dated February 18, 2013, in the following respects:
a) Terminating Mr. Bishop's obligation to pay child support for Hannah and Mark on the ground that both are now over 19 years of age, being the age of majority in New Brunswick, and on the ground that Hannah is no longer residing with her mother and Mark is no longer enrolled in a full-time course of studies, and is, in fact, employed and residing with Mr. Bishop.
b) Terminating Mr. Bishop's obligation to pay spousal support for Ms. McKinney on the ground that she has re-married.
[7] Mr. Bishop further requests that the monies he paid for child support for Hannah, beginning on her 19th birthday, and for Mark from September 2014, when he began residing with Mr. Bishop, be applied to his arrears.
[8] The Registrar of this court in Guelph received a letter dated April 16, 2015, from Jaclyn Blucher, addressed to the court administrator of the Ontario Superior Court of Justice, with reference to this matter, which Ms. Blucher requested be placed in the court file for review of the presiding Justice in advance of the case conference. The letter indicated the following:
a) This matter was scheduled for a case conference on May 25, 2015, at 10:00 a.m.
b) Ms. Blucher represents Rebecca McKinney in the variation proceeding, which they understand is pursuant to section 17(1)(a) of the Divorce Act.
c) Ms. McKinney is ordinarily resident in New Brunswick and does not accept the jurisdiction of the court pursuant to section 18(2) of the Divorce Act, and will not be filing any documents with the court nor appearing in person on the date scheduled for the case conference.
d) Ms. McKinney requests that this matter proceed by way of the provisional rules of the Divorce Act.
[9] Having regard to Ms. McKinney's position, there was no purpose to be served in conducting a case conference, as provided for in Rule 17 of the Family Law Rules of Ontario. The purpose of such a conference is to facilitate discussions with a view to settlement of the issues and the narrowing of the issues in dispute, and ensuring disclosure of available evidence pursuant to Rule 17. I therefore proceeded on May 25, 2015, with a hearing of Mr. Bishop's application, with a view to making a provisional order pursuant to s. 18(2) of the Divorce Act.
[10] At the hearing on May 25, 2015, Mr. Bishop testified to the following events that had occurred since February 18, 2013:
a) A few months before Hannah Bishop's 18th birthday (on August 3, 2012), she completed her high school and subsequently "just relaxed for a year", working at an ice cream store and attending Bible study. She then decided to attend Crandall University, a Christian university "specializing in taking in students that were homeschooled who couldn't otherwise attend any postsecondary arrangements." I have reviewed Mr. Bishop's testimony and conclude that he was in error in stating that Hannah completed high school just before her 18th birthday, and that he meant that she completed high school just before her 19th birthday, which would have been August 3, 2013. I base this conclusion on the fact that he stated that Hannah spent a year working from when she completed high school to when she decided to return to school, and that she left for Crandall University in September 2014.
b) Hannah left her mother's residence in September 2014, at the age of 20, and began a two year course in communications at Crandall University in Moncton. Mr. Bishop stated that he obtained that information from Hannah, in July 2014, when she asked for his benefits card so that she could apply for dental and other benefits under its family coverage when she was at university, because she was over the age of entitlement to benefits under her mother's plan.
c) Mr. Bishop spoke to Hannah on a weekly basis after she began her studies at Crandall University. It was his understanding from Hannah that from when she graduated from high school, to September 2014, when she began university, her activities had no relation to her proposed continuation of studies. She decided to enroll in the communications program because she likes to write books and novels and her father suggested to her that she should look into the program.
d) Hannah is financing her education costs at Crandall University with a grant that she received and loans that she has taken out. Mr. Bishop did not provide the details of her education costs or the financial assistance she received.
e) According to Mr. Bishop, Hannah returned to her mother's residence on vacations, such as for Christmas vacation in 2014.
f) In late August 2014, at about the time Hannah left for university, Mark left his mother's residence and moved to Ontario. For a time, he resided with friends of his father's, with his father's help. He began working at Jiffy Lube in mid-September 2014.
g) At about the time of Mark's 19th birthday (March 26, 2015), he began residing permanently with his father.
h) Mark has continued working at Jiffy Lube, but he is reducing his hours to part-time because he expected to begin school in September 2015. He was accepted into a program at Conestoga College leading to a mechanic's licence.
i) Ms. McKinney married in October 2014. She moved out of the house she was renting and moved in with her current husband, who is a truck driver, earning $60,000 to $70,000 per year trucking goods from the ships in Saint John Harbour. Mr. Bishop has not spoken directly with Ms. McKinney, as she will not entertain calls, letters, e-mails, or text messages from Mr. Bishop, but he received the information about her from Hannah.
[11] At the time of the hearing, Mr. Bishop's arrears of support were approximately $130,000. The combined arrears of spousal and child support had reached $176,000, and he had paid that amount down to $130,000. He explained that he had $40,000 set aside, anticipating that he would be ordered to pay a greater amount of child support, so he applied those savings immediately to his arrears of child support, which amounted to approximately $26,000, and the balance of approximately $13,000 to the arrears of spousal support, and then began making the payments toward the remaining arrears and ongoing support.
[12] Mr. Bishop testified that he is employed by Blackberry and his salary has increased approximately $5,000 per year since 2013, and is now approximately $112,000.
ISSUES
[13] The motion raises the following issues for determination by this court:
a) Can the issue of Mr. Bishop's entitlement to a variation of his support obligations be adequately determined under sections 18 and 19 of the Divorce Act, which set out a procedure by which a spouse who resides on one province may apply in that province for a provisional order varying support, which takes effect only if confirmed by the court in the province in which the other spouse resides?
b) Is Mr. Bishop's evidence concerning the changes in Hannah's and Ms. McKinney's circumstances admissible, being hearsay received from Hannah Bishop?
c) Has there been a material change of circumstances that justifies a variation of the final order of Justice Noble?
d) If so, what variation of child support, if any, is just in the circumstances?
e) What variation of spousal support, if any, is just in the circumstances?
PARTIES' POSITIONS
[14] Mr. Bishop asks that his child support obligation for Hannah be terminated as of May 2012, when she finished high school, and that his child support obligation for Mark be terminated as of the same date, when Mark ceased to reside with his mother and moved to Ontario. He asks that his spousal support obligation to Ms. McKinney be terminated as of October 2014, when Ms. McKinney re-married.
ANALYSIS AND EVIDENCE
a) Can the issues be adequately determined under sections 18 and 19 of the Divorce Act?
Legislative framework
[15] The Divorce Act provides, in part:
18(2) Notwithstanding paragraph 5(1)(a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and
(a) the respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and
(b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,
the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it. [Emphasis added]
[16] Where the court makes a provisional order under s. 18, the court that is asked to confirm the order has the option of either confirming the order, or refusing to confirm it, or of sending it back to the court that made the order for the purpose of taking further evidence. Section 19 provides, in this regard:
19(6) Where, in a proceeding under this section, the respondent satisfies the court that for the purpose of taking further evidence or for any other purpose it is necessary to remit the matter back to the court that made the provisional order, the court may so remit the matter and adjourn the proceeding for that purpose.
18(5) Where, during a proceeding under section 19, a court in a province remits the matter back for further evidence to the court that made the provisional order, the court that made the order shall, after giving notice to the applicant, receive further evidence. [Emphasis added]
[17] A provisional order has "no legal effect until it is confirmed."[^3] Pursuant to subsections 19(6) and 18(6), a Justice at a later provisional hearing, upon receiving the matter back, can, apart from or beyond taking further evidence, revisit the provisional order should he or she so decide.
[18] I am satisfied that the issues raised in Mr. Bishop's application for variation can be adequately dealt with under the procedures set out in sections 18 and 19. These procedures permit the court to determine whether the evidence which Mr. Bishop has tendered raise a prima facie entitlement to variation. The court in New Brunswick can then determine, based on any evidence that Ms. McKinney tenders, whether the order can be confirmed or refused, or whether it should be remitted back to this court for the hearing of further evidence. If the latter course is followed, Ms. McKinney will have the opportunity of tendering her evidence before this court so that a determination can be made as to whether, on a balance of probabilities, the order initially made should be rescinded, or forwarded again to the court in New Brunswick with its recommendations.
b) Is Mr. Bishop's hearsay evidence from Hannah Bishop admissible?
[19] A rigid approach to hearsay ought not to be followed where the circumstances give the court "...sufficient comfort in its truth and accuracy".[^4] In such cases, the court should follow a principled approach as to admissibility. Applying this approach, I find Mr. Bishop's evidence, insofar as it is based on information he received from his adult daughter, Hannah, to be necessary and reliable. Mr. Bishop is unable to obtain information directly from Ms. McKinney because she refuses to communicate directly with him. Yet, it is also difficult for him to obtain an affidavit from Hannah because she resides in New Brunswick and he resides in Ontario. The evidence in question is reliable, however, because Mr. Bishop obtained it from Hannah, and it concerned facts that were within her personal knowledge.
[20] The complaint that evidence in support of an application for a variation under the provisional order sections of the Divorce Act is in the nature of hearsay is most frequently raised when the court that receives a provisional order is considering whether to confirm it. The hearing of an application for a provisional order, on the other hand, is an uncontested hearing, although the order is subject to a later confirmation hearing. In Bindra v. Bindra, in 2009, Justice Ricchetti of this court accepted hearsay evidence from the wife about the husband's income at an uncontested trial.[^5]
[21] Even at a confirmation hearing, and at applications for non-provisional support orders, hearsay is admitted provided it meets the test of necessity and reliability. In Bullock v. Bullock, in 2009, Justice Gray of the B.C. Supreme Court confirmed, in modified form, a provisional order obtained based, in part, on hearsay evidence.[^6] In Cranston-Aube v. Stubbington, in 2000, Justice Kukurin of the Ontario Court of Justice, dismissed a request by a husband to make a support order provisional pursuant to s. 44 of the Family Law Act, but ordered support based, in part, on hearsay concerning the husband's earnings.[^7]
[22] At the confirmation hearing, Ms. McKinney will have the opportunity to dispute the evidence upon which the provisional order is based. In Reid v. Gillingham, in 2013, Justice Walsh of the Court of Queen's Bench in New Brunswick remitted a provisional order back to the Supreme Court of Newfoundland and Labrador, which had made the order, "to address the question raised here in whatever fashion that Justice deems appropriate."[^8] Justice Walsh found that the respondent husband's assertion that the applicant wife and another man lived together was not compelling and was based on hearsay, speculation, and conjecture. He found that the husband's evidence established that his wife was probably in a relationship with another man, but not that the man was helping her pay her expenses. The husband's evidence was that the wife and the other man maintained separate homes approximately 26 miles apart.
[23] The facts of the present case are quite different from those in Reid v. Gillingham. Mr. Bishop's evidence that Hannah finished high school and spent a year working was derived from Hannah herself. His evidence that Ms. McKinney re-married in October 2014, was also derived from Hannah, who returned to her mother's home at Christmas in 2014, and would have had personal knowledge of her mother's marital circumstances.
[24] In Chesher v. Chesher, in 1999, Justice Veit of the Court of Queen's Bench of Alberta refused to make a provisional order because the husband's evidence, to the effect that the youngest child had ceased to attend school, was hearsay and not supported by affidavit evidence from the child herself.[^9] It is unclear from Justice Veit's reasons whether the child was residing in the same province as the father. The legislative regime set out in sections 18 and 19 of the Divorce Act is intended to relieve the unfairness to a spouse of being deprived of access to a variation because the other spouse is residing in another province. It would undermine this objective if the court that hears the applicant's application for a provisional order refused to make such an order on the ground that the applicant had been unable to secure an affidavit from a witness who resides in the province whose court will be deciding whether to confirm the order. The respondent spouse, in such a case, can more readily obtain the affidavit from the witness if she disputes the information upon which the provisional order is based.
[25] In Campbell v. Chapple, in 2004, Justice Vertes of the Supreme Court of the Northwest Territories made a provisional order, notwithstanding that the father's application for variation was based on his hearsay evidence, consisting of information given to him by his daughter, who was attending university and told him that she was receiving no support from her mother.[^10] Justice Vertes stated, "All of this information is, technically, hearsay but it is nevertheless reliable. It comes from a communication sent by the daughter to her father and it is appended to the applicant's affidavit."
[26] In the present case, the evidence of Mr. Bishop is necessary and reliable and should be received for the purpose of determining whether a provisional order should be made. Ms. McKinney will have the opportunity, at the confirmation hearing, to dispute the evidence upon which the provisional order was based. In doing so, she can tender an affidavit from her daughter who, because she resides with Ms. McKinney when she is not attending university, is readily accessible to her.
c) Has there been a material change in circumstances?
[27] Mr. Bishop's evidence is that Hannah spent a year and a half pursuing employment, and not engaged in activities that were related to her eventual continuation of studies.
[28] Ms. McKinney's entitlement to child support is derived from s. 15.1 of the Divorce Act. It provides:
15.1(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
[29] The Divorce Act defines a "child of the marriage" as follows:
2(1) In this Act,
"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.
[30] The Ontario Court of Appeal held in Tapson v. Tapson, in 1969, that "other cause" in the predecessor of the current Divorce Act, which had similar wording, should not be given a narrow construction whereby the general wording is restricted to things of the same type as the listed items. The Court therefore held that regular attendance at a school and pursuing an education in the ordinary course designed to fit the child for the future constitutes an "other cause".[^11]
[31] A significant interruption in a child's studies can result in termination of the entitlement to support of the parent with whom the child resides. For example, in Wasney v. Wasney, in 2000, the Court of Appeal held that where the child completed secondary school in June and there was no evidence that she planned to continue her education, the residential parent's entitlement to child support terminated as of the end of December in that year.[^12]
[32] Based on the fact that Hannah, following her graduation from high school, terminated her studies for longer than the summer months, I find that there was a material change of circumstances. Based on the fact that Mark ceased to reside with his mother and moved to Ontario, where he secured full-time employment, I find that he was no longer a child of the marriage within the meaning of s. 15.1, and that his employment amounted to a further material change in circumstances.
[33] Ms. McKinney's entitlement to spousal support is derived from s. 15.2 of the Divorce Act. It provides:
15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
[34] Variation of support orders is governed by s. 17(4.1) of the Divorce Act, which states that before a court varies a support order it "shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order…"
[35] It is well established that the change must be a "material" change.[^13] The leading authority on what constitutes a material change is the Supreme Court of Canada's decision in G.(L.) v. B.(G.), in 1995.[^14] At para. 73, the court reaffirmed the threshold test for determining a change of circumstances from Willick:
In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. 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.[^15] [Emphasis added]
[36] The Supreme Court of Canada in Moge v. Moge, in 1992, and in G.(L.) v. B.(G.), in 1995, indicates that remarriage is not a bar to continuance of spousal support and that on an application to vary, the court must take into account all the factors in s. 17(7), not merely need.[^16]
[37] More recently, the Ontario Court of Appeal, in Reisman v. Reisman, heard an application to change the wording of the Court's endorsement, which had removed the trial judge's ten year cap on spousal support but had not included the judge's wording that re-marriage could amount to a material change in circumstances. The Court of Appeal changed the wording of its endorsement, and stated:
We approve the order drafted by Mrs. Reisman. It may well be – indeed one may say it is likely – that remarriage or three years cohabitation would constitute a material change in circumstances warranting a variation or termination of spousal support. However, we do not wish to fetter the discretion of a trial judge on a future application to vary or terminate support.[^17] [Emphasis added]
[38] Based on the foregoing, I find that Ms. McKinney's re-marriage to a person who is a truck driver earning $60,000 to $70,000 amounts to a material change in circumstances which, on its face, may justify a variation of spousal support.
d) What variation of child support, if any, is just?
[39] For the reasons that follow, I find that Mr. Bishop's obligation to pay child support for Hannah should be suspended for the year following her graduation from high school, but should resume following her enrollment at Crandall University. I find that Ms. McKinney's entitlement to child support for Mark should terminate as of August 2014, when Mark ceased to reside with his mother, moved to Ontario, and secured full-time employment.
[40] Justice Fragomeni of this court dealt with the issue of a spouse's continued entitlement to child support for a child who has ceased to attend school in Lawless v. Asaro, in 2003. He stated:
Once a child has reached the age of majority at law they are expected to become financially independent. However, if they are precluded from doing so or achieving this level of independence because of illness or disability the obligation of a parent to support the child would continue. This obligation will also continue if the child is unable to work because they are at school.
In the event that a child has ceased to be a child of the marriage a question may arise whether the child can regain his or her lost status. Depending on the facts of a particular case and the circumstances of the situation, an adult child who has ceased to be a child of the marriage may regain that lost status by reason of the pursuit of further education. However, each fact situation must be analyzed carefully and the timelines between the time that the child has ceased to be a child of the marriage and the time when the request is being made to regain the lost status must be considered fully.[^18] [Emphasis added]
[41] In Lawless, the court found that a three-year hiatus for each of two daughters relieved the father of responsibility for paying ongoing child support once they returned to school. Both daughters had displayed significant independence during the interval while they were not attending school, one living with a boyfriend for much of the three years, and both daughters working extensively before returning to school.
[42] In Harrison v. Vargek, in 2002, the Manitoba Court of Queen's Bench gave a helpful summary of the law regarding the entitlement to child support for children who have interrupted their studies:
A child is unable to withdraw from the charge of a parent or to provide for him or herself if the child is in regular attendance at school pursuing an education in the ordinary course designed to prepare the child for years of life ahead: Tapson v. Tapson, above; Jackson v. Jackson, above; Farden v. Farden (1993), 1993 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master); Martin v. Martin (1988), 1988 2837 (BC CA), 26 B.C.L.R. (2d) 390 (B.C. C.A.); Grini v. Grini (1969), 1969 784 (MB QB), 5 D.L.R. (3d) 640 (Man. Q.B.).
It is established law that pursuit of an education which is necessary to equip the child for life in the future is a circumstance which may bring the child within the definition of child of the marriage: Ciardullo v. Ciardullo (1995), 1995 304 (BC SC), 15 R.F.L. (4th) 121 (B.C. S.C.).
The definition section of the Divorce Act has been interpreted to include "children over 16 who are still pursuing their education, which of course in our age is for many as much a necessary of life as anything could be": Martin v. Martin, above at 393. This includes in some cases post-secondary university or other education: Budyk v. Sol (1998), 1998 28014 (MB CA), 40 R.F.L. (4th) 348 (Man. C.A.); Oswald v. Oswald, 2001 MBQB 47, [2001] M.J. No. 73 (Man. Q.B.); Janzen v. Janzen (1981), 1981 449 (BC CA), 28 B.C.L.R. 63 (B.C. C.A.); Van de Pol v. Van de Pol, above. A child who has withdrawn from educational pursuits may be reinstated as to support entitlement by bringing him or herself back within the definition of child of the marriage under the Divorce Act: Gray v. Gray (1992), 1992 13067 (MB QB), 39 R.F.L. (3d) 127 (Man. Q.B.); Bain v. Bain[1994 CarswellMan 46 (Man. Q.B.)] (28 July 1994), FD 92-01-31883 [unreported]; Wahl v. Wahl, above.
It is a question of fact in each case whether a particular child remains a child of the marriage for support purposes: Jackson v. Jackson, above; Grini v. Grini, above. As with minor children, those who have attained the age of majority have child support quantum set in accordance with the Child Support Guidelines. Section 3(2) of the Guidelines directs the Court in its assessment of the quantum of child support in connection with those who obtained the age of majority.
The presumptive rule is that basic child support is set in accordance with the Tables as with minor children: Holtby v. Holtby (1997),1997 24470 (ON CJ), 30 R.F.L. (4th) 70 (Ont. Fam. Ct.); Oswald v. Oswald, above. Alternatively, if a court considers that approach to be inappropriate, it may quantify the support as it considers appropriate having regard to the child's condition, means, needs and other circumstances, as well as the financial ability of the spouses to contribute to the child's support. The onus of proving inappropriateness is on the payor: Glen v. Glen(1997), 1997 1026 (BC SC), 34 R.F.L. (4th) 13 (B.C. S.C.); Oswald v. Oswald, above.
In addition to basic child support courts can order the sharing of post-secondary education expenses for children (s. 7(1)(e) of Child Support Guidelines). Such claims are subject to the discretionary tests of necessity and reasonableness.
Children pursuing post-secondary education are expected to contribute to the cost of their studies: Carnall v. Carnall (1998), 1998 13446 (SK QB), 37 R.F.L. (4th) 392 (Sask. Q.B.), supp. reasons 1998 CarswellSask 459 (Sask. Q.B.). While the standard or level of contribution expected of a child is subject to debate, an adult child must bear some of the responsibility for his or her own support: Guillemette v. Horne (1993), 1993 14921 (MB CA), 48 R.F.L. (3d) 229 (Man. C.A.); Wesemann v. Wesemann (1999), 1999 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C. S.C.).[^19]
[43] In Harrison, the court refused to reinstate support entitlement for a daughter who had been living independently for three and a half years, but reinstated support for a son who had been out of school for more than a year.
[44] In Nikita v. Nikita, in 2002, the payor father was required to pay child support for his adult son from when he began to attend community college, after a gap, including transitional periods between semesters. He was retroactively absolved of his obligation during the long periods of his son's non-attendance.[^20] However, Wolder J. found that the father was liable to support his son later, when he returned to school.
[45] Based on the foregoing jurisprudence, a temporary interruption in a child's studies may lead to a suspension of child support, but support may resume if the child returns to his or her studies within a reasonable period. In Rotondi v. Rotondi, I stated:
Marital separation can cause stress and uncertainty in a child's life that can impede his/her ability to make a smooth transition from secondary to post-secondary studies. The child may not have access to both parents for guidance as readily as children in families that are intact, and may be more dependent on trial and error to find a satisfactory career path. The court has given children latitude, in these circumstances, by maintaining their parents' payment of child support and contribution to s. 7 expenses in spite of set-backs, delays, and interruptions in the child's academic career, provided there is a reasonable prospect that continued support will eventually lead to the child's ability to earn a livelihood.[^21]
[46] Hannah was 19 years old when she discontinued her studies following her graduation from high school. She resumed her studies a year and a half later. Based solely on Mr. Bishop's evidence, Hannah was not, during the interval between her graduation from high school and enrollment at Crandall University, engaged in activities that were related to the eventual continuation of her studies. This amounts to a material change in circumstances as it rendered Hannah no longer dependent on her mother for reasons of full-time enrollment in post-secondary studies, and therefore no longer a "child of the marriage" within the meaning of s. 15.1. Mr. Bishop's obligation to pay child support during that period should therefore be suspended during the interruption of Hannah's studies.
[47] Ms. McKinney's entitlement to child support for Hannah during the period following her enrollment at Crandall University depends on the degree of Hannah's dependency on her. Dependency is the key criterion for entitlement to support under the Divorce Act where the child is over the age of majority.[^22] In Farden v. Farden, the B.C. Supreme Court set out the factors that the court should consider when determining whether an adult child in a post-secondary institution is "a child of the marriage". These are:
(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 or not the child has applied for, or is eligible for, student loans or other financial assistance;
(3) The career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) The ability of the child to contribute to his own support through part-time employment;
(5) The age of the child;
(6) The child's past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and
(8) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.[^23]
[48] Mr. Bishop's evidence is that Hannah was 20 years old when she entered Crandall University, only a little after she had graduated from high school. She enrolled in a full-time two-year communications program. Her past activities, by Mr. Bishop's own admission, suited her for that program. Her employment at an ice cream shop during the hiatus between high school and university would not reasonably be expected to have made her self-sufficient, and while Mr. Bishop testifies that she received a grant and student loans, this evidence does not satisfy me that she had become self-sufficient. Mr. Bishop acknowledges that she returned to her mother's home during her school holidays, and maintained her relationship with both parents. In the absence of further evidence, I conclude that Ms. McKinney's entitlement to child support for Hannah resumed in September 2014 for the two year period of her university program.
e) What variation of spousal support, if any, is just?
[49] Carol Rogerson and Rollie Thompson, the authors of the Spousal Support Advisory Guidelines, suggest that the matter of whether re-marriage should result in an increase or decrease in spousal support is a matter of judicial discretion. They considered that circumstances "such as post-separation increases in the payor's income, re-partnering, remarriage and second families" are best left to a discretionary, case-by-case determination.[^24]
[50] In Vine v. Vine, in 1986, the Ontario High Court held that the mere fact of a new relationship does not disentitle a spouse to continued support. It is a factor the court assesses to determine what support is appropriate. The court should, however, start from the premise that the new relationship is sufficient to satisfy the payee's economic needs.[^25]
[51] However, in G.(L.) v. B.(G.), in 1995, the Supreme Court of Canada held that economic self-sufficiency cannot be presumed; it must be proven.[^26] Nor can the fact that the payee was living with a companion mean she or he is presumed to be financially independent.[^27]
[52] As Justice Gordon put it in Lee v. Lee, in 2006, "Remarriage is a material change in circumstances; however, it is not necessarily determinative of the support issue."[^28]
[53] In Beggs v. Beggs, in 1981, this court reduced support for a remarried wife on a graduated basis over a series of years.[^29] In Kelly v. Kelly, in 2007, the B.C. Supreme Court held that remarriage is more likely to result in a variation of spousal support when the support is based on the recipient's need than when it is based on compensatory or contractual considerations. In that case, the court reduced support on a graduated basis by 25 percent per year.[^30] Justice Murray of the Ontario Court of Justice, in Boland v. Boland, in 2012, also followed the graduated reduction approach in a remarriage case.[^31]
[54] I infer from Justice Noble's reasons in 2009 that Ms. McKinney's entitlement to spousal support was based mainly on her need, having regard to the fact that he deferred the quantification of support pending further evidence as to "the conditions, means, and needs of the parties and their lifestyle during the marriage" and specified that Mr. Bishop would pay retroactive spousal support based on the application of the Spousal Support Advisory Guidelines "and dependent on the living arrangements of the children."
[55] While the evidence that the court has received from Mr. Bishop establishes only that Ms. McKinney has re-married and that he husband is a truck driver who earns $60,000 to $70,000 per year, and the court considering an application to vary spousal support might normally require evidence of other circumstances, such as Ms. McKinney's current income, and the contribution her husband makes to their household, I am mindful that Mr. Bishop is applying for a provisional order, and that he is handicapped by the fact that Ms. McKinney is residing in another province and refuses to communicate directly with him.
[56] If Ms. McKinney were residing in Ontario, rule 13(4.2) of the Family Law Rules of this Province would impose on her the obligation to serve and file a financial statement within the time for serving and filing a response to the motion and the court, thereafter, could require her to produce further evidence regarding her financial circumstances, including the contribution her husband makes to the payment of her household expenses. Because Ms. McKinney resides in New Brunswick and disputes the jurisdiction of the court in Ontario, she is not subject to these disclosure requirements. In these circumstances, it is just to relieve Mr. Bishop of some of the burden of proof that a variation application normally entails.
[57] In Le v. Hunh, in 2000, Downs J. of the British Columbia Supreme Court held that the evidentiary standard on the applicant at a provisional order hearing is "very low":
I agree completely with Shaw J. that the "evidentiary threshold mush necessarily be flexible." I do not agree with the learned Provincial Court judge's implied finding in the case at bar that the evidentiary burden on an applicant for a provisional order is proof of employability on a balance of probabilities. All the applicant needs provide to the court is some evidence of the respondent's employability. This is so because the provisional order "has no substantive efficacy until by acceptance it is adopted and incorporated in the action of the [reciprocating] court": Ontario (Attorney General) v. Scott (1955), 1955 16 (SCC), [1956] S.C.R. 137 (S.C.C.) at p. 144. Of course, it is always preferable that the applicant provide the court with as much evidence as is reasonably possible to obtain as to the respondent's circumstances, but the evidentiary burden on the applicant at the first step of the proceedings – on the application for a provisional order – is very low.[^32] [Emphasis added]
[58] For the foregoing reasons, I conclude that the change in Ms. McKinney's circumstances justifies a variation of Mr. Bishop's support obligation, and the amount that he is required to pay her for spousal support will therefore be reduced by 20 percent per year beginning in 2015.
CONCLUSION AND ORDER
[59] Based on the foregoing, it is ordered that:
- The order of the Honourable Mr. Justice Noble dated February 18, 2013, is varied in the following respects:
(a) Mr. Bishop's obligation to pay child support for Hannah Bishop is terminated, retroactive to August 31, 2013, until and including August 31, 2014.
(b) For the period from September 1, 2013, to August 1, 2014, Mr. Bishop shall pay child support to Ms. McKinney for the support of Mark Bishop alone, in the amount of $969 per month, being the table child support amount for one child for the Province of New Brunswick, based on Mr. Bishop's annual income of $112,000.
(c) Mr. Bishop's obligation to pay child support for Mark Bishop is terminated retroactive to August 31, 2014.
(d) Mr. Bishop shall pay child support to Ms. McKinney, beginning September 1, 2015, for the support of Hannah Bishop, at the rate of $540 per month, calculated as follows:
i. Child support for one child, Hannah Bishop, at a reduced rate of $323 per month, being approximately 33 percent of the full table child support of $969 per month for one child, based on Mr. Bishop's current stated income of $112,000, for the months from September 1, 2015, to April 1, 2016, being the academic session, for so long as Hannah is enrolled in full-time attendance at university and not actually residing with Ms. McKinney except on school holidays: 8 months x $323 = $2,584.
ii. Child support for one child, Hannah Bishop, at the full table amount of $969 per month, based on Mr. Bishop's current stated income of $112,000, from June 1 to August 1, 2016: 4 months x $969 = $3,876.
iii. Average monthly support = $2,584 + $3,876 = $6,460/12 = $538.33, which I round up to $540.
(e) Mr. Bishop's obligation to pay spousal support (at $1,424 per month) shall be reduced by annual increments of 20 percent beginning November 1, 2014, calculated as follows:
i. For the year from November 1, 2014, to October 31, 2015: $1,139.20 per month;
ii. For the year from November 1, 2015, to October 31, 2016: $854.40 per month;
iii. For the year from November 1, 2016, to October 31, 2017: $569.60 per month;
iv. For the year from November 1, 2017, to October 31, 2018: $284.80 per month.
- This order is provisional and shall not become effective unless and until confirmed by the Court of Queen's Bench of New Brunswick, Family Division, District of Saint John.
Price J.
Released: September 8, 2015
COURT FILE NO.: FS-15-243
DATE: 2015-09-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHARLES WILLIAM BISHOP
Applicant
- and –
REBECCA McKINNEY
Respondent
REASONS FOR PROVISIONAL ORDER
(Pursuant to s. 18 of the Divorce Act)
Price J.
Released: September 8, 2015
[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 18 and 19. [^2]: Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.). [^3]: Divorce Act, s. 18(2). [^4]: R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; R. v. Khelawon, 2006 SCC 57 at para. 67, [2006] 2 S.C.R. 787; followed, in the civil context, in Grasby v. Merck Frosst Canada Ltd., 2007 MBQB 97 at para. 62, 216 Man. R. (2d) 117. [^5]: Bindra v. Bindra, 2009 35729 (Ont. S.C.). [^6]: Bullock v. Bullock, 2009 BCSC 1279 at paras. 91 and 94. [^7]: Cranston-Aube v. Stubbington, 2000 28154 at para. 14 (Ont. C.J.). [^8]: Reid v Gillingham, 2013 NBQB 338 at para. 9, 411 NBR (2d) 382. [^9]: Chesher v. Chesher, 1999 ABQB 781. [^10]: Campbell v. Chapple, 2004 NWTSC 47 at para. 12. [^11]: Tapson v. Tapson (1969), 1969 541 (ON CA), [1970] 1 O.R. 521 (C.A.). [^12]: Wasney v. Wasney (2000), 2000 5687 (ON CA), 5 R.F.L. (5th) 461 (Ont. C.A.). [^13]: Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670. [^14]: G.(L.) v. B.(G.), 1995 65 (SCC), [1995] 3 S.C.R. 370. [^15]: G.(L.) v. B.(G.) at para. 73. [^16]: Moge v. Moge, 1992 25 (SCC), [1992] 3 SCR 813.; G.(L.) v. B.(G.). [^17]: Reisman v. Reisman, 2014 ONCA 607 at para. 5. [^18]: Lawless v. Asaro (2003), 2003 2164 (ON SC), 39 R.F.L. (5th) 129 at paras. 11 and 12 (Ont. S.C.). [^19]: Harrison v. Vargek, 2002 MBQB 97 at paras. 26 to 35, 164 Man. R. (2d) 74. [^20]: Nikita v. Nikita, 2002 46584 (Ont. C.J.). [^21]: Rotondi v. Rotondi, 2014 ONSC 1520 at para. 29. [^22]: McCrea v. McCrea, [2005] O.J. No. 50 at para. 11. [^23]: Farden v. Farden (1993), 1993 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C.S.C.). [^24]: Wilton and MacDonald, Spousal Support in Canada, Carswell, 2011 at p. 54, as cited in Reid v Gillingham, supra. [^25]: Vine v. Vine (1986), 1986 2793 (ON SC), 54 O.R. (2d) 580 (H.C.) [^26]: G.(L.) v. B.(G.), supra. [^27]: G.(L.) v. B.(G.), supra at paras. 68-69. [^28]: Lee v. Lee, 2006 5612 at para. 15 (Ont. S.C.). [^29]: Beggs v. Beggs, 1981 1914 (ON SC), 33 OR (2d) 193 (H.C.) [^30]: Kelly v. Kelly, 2007 BCSC 227 at paras. 49 and 51. [^31]: Boland v. Boland, 2012 ONCJ 102 at paras. 130-133. [^32]: Le v. Huynh, 2000 BCSC 1753, at para. 7