Geran v Geran,

• Jurisdiction: Saskatchewan
• Judge: Cameron, Smith and Herauf, JJ.A.
• Neutral Citation: 2011 SKCA 55
• Court: Court of Appeal (Saskatchewan)
• Date: 15 March 2011
• Citation: 2011 SKCA 55,(2011), 371 Sask.R. 233 (CA),1988 CanLII 5096 (BS SC),[2011] 10 WWR 474,97 RFL (6th) 68,[2011] CarswellSask 33397,[2011] SJ No 310 (QL),201 ACWS (3d) 1003,371 Sask R 233,(2011), 371 SaskR 233 (CA),371 SaskR 233,[2011] S.J. No 310 (QL),371 Sask.R. 233

Geran v. Geran (2011), 371 Sask.R. 233 (CA);

    518 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.067

Calvin George Geran (appellant) v. Brenda Lee Geran (respondent)

(1708; 2011 SKCA 55)

Indexed As: Geran v. Geran

Saskatchewan Court of Appeal

Cameron, Smith and Herauf, JJ.A.

May 11, 2011.

Summary:

The parties' 22 year old daughter had one unsuccessful year of post-secondary studies. She then worked full-time for a year, living on her own. When she was readmitted to university on a probationary basis, she returned to the mother's home. The mother sought to vary a 1992 order for child support for the daughter. The father had ceased making payments under the order.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2008), 325 Sask.R. 89, allowed the application. The daughter was a child of the marriage entitled to support calculated in accordance with s. 3(2)(a) of the Federal Child Support Guidelines. The father appealed.

The Saskatchewan Court of Appeal allowed the appeal in part, varying the father's support obligation from $843 per month to $420 per month.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - The Saskatchewan Court of Appeal set out "a number of indicia to be considered by the courts in determining whether an adult child is unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education ..." - The indicia included the "age, existing qualifications, and experience of the child"; "[t]he aptitude and ability of the child, along with the child's level of maturity and commitment, including his or her sense of responsibility and prudence"; "[t]he nature and quality of the child's post-secondary education and career plan, including the duration of the period of study, the prospects of success, the potential benefit, and the associated cost"; "[t]he extent of the child's ability and willingness to meet the associated cost"; "[t]he willingness of the child to remain reasonably accountable to the parents in relation to his or her plans"; "[t]he plans or expectations that the parents may have had in mind in relation to the post-secondary education of their child, or each of their children, bearing in mind that reasonable parents are ordinarily concerned to treat each of the children comparatively equally"; "[t]he means and needs and other circumstances of the parents, including the family responsibilities customarily born by reasonable parents"; and such other circumstances as might be relevant - See paragraphs 6 to 24.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - The parties' 22 year old daughter had one unsuccessful year of post-secondary studies - She then worked full-time for a year, living on her own - When she was readmitted to university on a probationary basis, she returned to the mother's home - The mother sought to vary a 1992 order for child support - The father had ceased making payments under the order - The daughter anticipated an income of $12,000 per year from part-time employment - Her adjusted personal expenses, exclusive of school expenses, were approximately $12,000 - McIntyre, J., held that the daughter was a child of the marriage entitled to child support - The father appealed, asserting, inter alia, that McIntyre, J., had erred in failing to give effect to the period during which the daughter ceased to be a "child of the marriage"and the daughter's renunciation of her relationship with her father - The Saskatchewan Court of Appeal dismissed this aspect of the appeal - While the daughter had ceased to be a child of the marriage for a certain period, the existing support order had not been rescinded and both parents had acknowledged the potential for future financial responsibility - Further, a period of self sufficiency did not preclude a finding that the child was a "child of the marriage" - McIntyre, J.'s conclusion was not unreasonable - Regarding the father/daughter relationship, the parties had separated when the daughter was six weeks old - She had virtually no contact with the father for years and they hardly knew each other - There had been no unilateral termination of the relationship - See paragraphs 25 to 47.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - Awards - To children and children defined - [See second Family Law - Topic 3998 ].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines - Child over the age of majority - The parties' 22 year old daughter had one unsuccessful year of post-secondary studies - She then worked full-time for a year, living on her own - When she was readmitted to university on a probationary basis, she returned to the mother's home - The mother sought to vary a 1992 order for child support - The father had ceased making payments under the order - The daughter anticipated an income of $12,000 per year from part-time employment - Her adjusted personal expenses, exclusive of school expenses, were approximately $12,000 - McIntyre, J., held that the daughter was a child of the marriage entitled to child support under s. 3(2)(a) of the Federal Child Support Guidelines in the amount of $843 per month - The father appealed, asserting, inter alia, that McIntyre, J., had erred in ordering support under s. 3(2)(a), rather than s. 3(2)(b) - The Saskatchewan Court of Appeal allowed this aspect of the appeal, varying the father's support obligation to $420 per month - Where a healthy and able-bodied adult child was living at home with one of the parents, was attending university and was earning a substantial income, the amount of child support was generally to be determined under s. 3(2)(b) of the Guidelines - The approach under s. 3(2)(b) involved determining the amount of child support with reference to the actual, rather than the presumed, needs, means and circumstances of the child - Applying that approach here led the court to conclude that the amount of $420 per month was an appropriate measure of the father's obligation to support the child - See paragraphs 48 to 78.

Cases Noticed:

Ethier v. Skrudland (2011), 366 Sask.R. 203; 506 W.A.C. 203; 2011 SKCA 17, refd to. [para. 6].

Smith v. Smith (2008), 314 Sask.R. 187; 435 W.A.C. 187; 59 R.F.L.(6th) 280; 2008 SKCA 141, refd to. [para. 11].

Harrington v. Harrington (1981), 22 R.F.L.(2d) 40 (Ont. C.A.), refd to. [para. 13].

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19, refd to. [para. 13].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 13].

Jackson v. Jackson, [1973] S.C.R. 205, refd to. [para. 15].

Newman v. Thompson, [1997] 9 W.W.R. 519; 118 Man.R.(2d) 177; 149 W.A.C. 177; 30 R.F.L.(4th) 143 (C.A.), refd to. [para. 17].

Zaba v. Bradley (1996), 137 Sask.R. 295; 107 W.A.C. 295; 18 R.F.L.(4th) 1 (C.A.), refd to. [para. 19].

Whitton v. Whitton (1989), 34 O.A.C. 31; 21 R.F.L.(3d) 261 (C.A.), refd to. [para. 20].

Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134; 32 R.F.L.(4th) 406 (C.A.), refd to. [para. 20].

Olson v. Olson (2003), 320 A.R. 379; 288 W.A.C. 379; 36 R.F.L.(5th) 196; 2003 ABCA 56, refd to. [para. 20].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 35 R.F.L.(6th) 239; 2007 MBCA 22, refd to. [para. 20].

Hagen v. Rankin (2002), 213 Sask.R. 257; 260 W.A.C. 257; 24 R.F.L.(5th) 38; 2002 SKCA 13, refd to. [para. 22].

Stocchero v. Stocchero, [1997] A.R. Uned. 168; 29 R.F.L.(4th) 223 (C.A.), refd to. [para. 39].

Longhurst v. Longhurst, [2005] B.C.T.C. 1189; 2005 BCSC 1189, refd to. [para. 39].

Dergousoff v. Dergousoff (1999), 177 Sask.R. 64; 199 W.A.C. 64; 48 R.F.L.(4th) 1 (C.A.), refd to. [para. 56].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 56, footnote 2].

W.P.N. v. B.J.N. (2005), 207 B.C.A.C. 76; 341 W.A.C. 76; 10 R.F.L.(6th) 440; 2005 BCCA 7, refd to. [para. 66].

Park v. Thompson (2005), 197 O.A.C. 158; 13 R.F.L.(6th) 415 (C.A.), refd to. [para. 66].

Counsel:

R. Bradley Hunter, Q.C., for the appellant;

James J. Vogel, for the respondent.

This appeal was heard on March 15, 2011, by Cameron, Smith and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On May 11, 2011, Cameron, J.A., delivered the following reasons for judgment for the court.