LeBlanc v. LeBlanc, 2015 NBQB 164

Judge:Robichaud, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:April 02, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 164;(2015), 440 N.B.R.(2d) 129 (FD)
 
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LeBlanc v. LeBlanc (2015), 440 N.B.R.(2d) 129 (FD);

    440 R.N.-B.(2e) 129; 1148 A.P.R. 129

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. SE.003

Renvoi temp.: [2015] N.B.R.(2d) TBEd. SE.003

Marcia Jane LeBlanc (applicant) v. Jean LeBlanc (respondent)

(FDM 797-1999; 1301-44417; 2015 NBQB 164; 2015 NBBR 164)

Indexed As: LeBlanc v. LeBlanc

Répertorié: LeBlanc v. LeBlanc

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Moncton

Robichaud, J.

August 12, 2015.

Summary:

Résumé:

The applicant filed a Notice of Motion requesting child support for the parties' 21 year old daughter, including retroactive lump sum support effective September 2012, prospective monthly support payments by the respondent to the applicant, and a contribution from the respondent in accordance with the Guidelines respecting all of the daughter's post-secondary education expenses for the full duration of her studies. The applicant also sought solicitor and client costs.

The New Brunswick Court of Queen's Bench, Family Division, determined the issues accordingly. The court awarded the mother costs, fixed at $10,000 including disbursements, where she had been the most successful party.

Family Law - Topic 2370

Maintenance of wives and children - Defences or bars - Disentitlement by conduct - A father argued that, even if the court found that his 21 year old daughter was a child of the marriage, it should not issue a support order because she had repudiated him - The New Brunswick Court of Queen's Bench, Family Division, stated that "... the child's behaviour towards her father is unacceptable, disrespectful and shows a certain degree of immaturity. On the other hand, when looking at the evidence as a whole, I am not convinced that her behaviour constitutes extreme ingratitude, as contemplated by the Court of Appeal in its reasoning [in L.P.S. v. M.S.F. (2015, N.B.C.A.)]. There is nothing in the evidence that convinces me that the child should be deprived of the support payments she needs or that the payments should be reduced." - The father's own testimony supported the finding that she was a child of the marriage - He sincerely stated that he wished to support her plans to enrol in an educational program and maintained that he would help her even if the court cancelled his obligation - See paragraphs 42 to 50.

Family Law - Topic 2416

Maintenance of spouses and children - Practice - Costs - [See Family Law - Topic 4175 ].

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - A mother sought retroactive and ongoing child support under the Federal Child Support Guidelines, for an adult child who was attending post-secondary education, including a contribution to extraordinary expenses - The New Brunswick Court of Queen's Bench, Family Division, stated that "[t]he courts often have to assess whether or not the program of studies is legitimate. In this case, the evidence shows that the child has been studying full time since September 2012. She obtained her diploma in criminology in April 2014, after completing an 18-month program. She registered for a Bachelor's degree in criminology at Saint Mary's University in September of the same year. She took five courses during the fall semester and four during the winter semester. For academic purposes, she is a full-time student. In my opinion, the two programs the child has chosen are consistent and nothing indicates that they will not lead to a career and ultimately to her independence. I find that the child's career choice is neither fanciful, nor far-fetched. Moreover, she seems to be a serious student." - See paragraph 51.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - A mother sought retroactive and ongoing child support under the Federal Child Support Guidelines, for an adult child who was attending post-secondary education, including a contribution to extraordinary (s. 7) expenses - The child had obtained a student loan of approximately $6,347 between September and December 2014 - The father maintained that the court should take the loan into account and reduce the net education expenses and his obligation - The New Brunswick Court of Queen's Bench, Family Division, held that "... the income and means of the parents, in particular the father, who pays for most of the education expenses (between 90% and 97%), are sufficient to cover the tuition fees that have already been reduced by a portion of the child's income and that the parents' contributions ought not to be reduced any further. I find that this case is not one of those where the child should be burdened with student loans, given the parents' financial situation and the mother's additional resources as a result of the retroactive support order I will issue, including the order pursuant to section 7(1)(e) of the Guidelines." - See paragraphs 77 to 81.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 2370 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - A mother requested an order for child support payable from September 2012, when the child (Mélissa) had resumed post-secondary studies - At the time, she was of full age (20 years old) - The mother argued that Mélissa was a child of the marriage (Divorce Act, s. 2.1), even though she had interrupted her studies for a period of approximately 22 months - She argued that Mélissa had been dependent on her parents since September 2012 because she was studying at a post-secondary institution and was unable to support herself, even though she had tried to work part-time during the school year and in the summer - The New Brunswick Court of Queen's Bench, Family Division, found that Mélissa was a full-time student or equivalent - Further, she had neither the resources nor the means to be financially independent - She was unable to withdraw from her parents' charge or to support herself owing to her studies - Therefore, she was a "child of the marriage" - See paragraphs 37 to 41.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines - Special or extraordinary expenses - [See second Family Law - Topic 3998 and both Family Law - Topic 4045.14 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother applied for a variation of child support respecting the parties' 21 year old daughter - Since 2012, the mother's only income had been from her contracts as a substitute teacher and the splitting of her new spouse's pension income - The pension income splitting gave her a slight tax advantage owing to the pension credit to which the couple was entitled under the Income Tax Act (ITA) - The New Brunswick Court of Queen's Bench, Family Division, held that the income from the pension splitting should not be included when calculating the mother's income for purposes of the Federal Child Support Guidelines - Apart from the arrangement allowed under the ITA, the pension as such belonged to the mother's spouse and not the mother - See paragraphs 53 and 54.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother sought retroactive and ongoing child support for an adult child who was attending post-secondary education, including a contribution to extraordinary (s. 7) expenses under the Federal Child Support Guidelines - The mother's counsel suggested that the father's income be determined by calculating the average of his income for the five years between 2010 and 2014 ($749,565) - She then argued that, because the father had not filed his 2014 income tax return, the fairest average would be that of the four years between 2009 and 2013 ($875,124) - The father's counsel argued that the exceptional income declared in 2011 and 2012 should not be included in the calculation, as these amounts included capital gains from the sale of his business ($1,405,316 in 2011 and $795,805 in 2012) - The New Brunswick Court of Queen's Bench, Family Division, held that neither formula made sense - There were no provisions in the Guidelines that recommended averaging the income over four or five years - The fact that the father had not filed his 2014 income tax return had no effect on how the income was determined - Moreover, like all other citizens, he had until April 30 to file, while the hearing ended on April 2 - The approach suggested by the father's counsel, namely that the court should exclude the income for 2012 and 2013 because it was exceptional, was also inappropriate - In accordance with s. 16 of the Guidelines, the payor's income was the "Total income" on line 150 of the T1 General form issued by the Canada Revenue Agency and was adjusted in accordance with Schedule III of the Guidelines - Where the court was of the view that determination of the income based on line 150 was not fair, it could, pursuant to s. 17, determine a reasonable amount in light of the pattern of income over the previous three years or make adjustments where a payor had incurred a non-recurring capital or business investment loss - The court was not convinced that the line 150 income did not reflect the fairest determination of income - Therefore, the father's income for the purposes of calculating his child support obligations was the amount entered on line 150 for 2012 and 2013 (i.e., $1,042,578 and $276,821, respectively) - The court fixed the father's income for 2014 and 2015 at $276,821 for child support purposes - The court found, inter alia, that the father had not met his burden of proving that the table amount was "inappropriate" - The court also determined the father's share of the s. 7 expenses - See paragraphs 58 to 73.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - [See second Family Law - Topic 4014 and second Family Law - Topic 4045.5 ].

Family Law - Topic 4045.14

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where child has income or capital - A mother sought child support for an adult child who was attending post-secondary education - The child earned $7,778 in 2012, had no income in 2013 and, in 2014, her income from part-time employment amounted to $14,003 - To date in 2015, she had had very little income because she quit her part-time job in February to focus on her studies - Further, she had to take two university courses in July and August 2015 - The New Brunswick Court of Queen's Bench, Family Division, found it difficult to give a precise estimate of her income and savings so as to impute a portion of her post-secondary education expenses to her - The court found it reasonable to impute to her a contribution of $3,000 towards her studies for 2012 and $7,000 for 2014 - Since she had no income in 2013, no contribution was imputed to her - For the current and subsequent years, the court imputed a contribution of $3,000 - See paragraph 64.

Family Law - Topic 4045.14

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where child has income or capital - A mother sought child support payable from September 2012, when the parties' daughter had resumed post-secondary studies - The father had given his daughter $24,000 from a family trust fund at the end of December 2011 - He claimed that he gave her the funds in anticipation of her future education expenses and asked that they be deducted from the support order - The mother alleged that the payment had been unconditional and that the child had been free to use the money as she wished - The New Brunswick Court of Queen's Bench, Family Division, found that the daughter had spent all of the money advanced on purchases which had nothing to do with education or living expenses - The court stated that "[w]ith respect to whether or not the payment was conditional, I prefer the father's testimony and I consider his explanation that the money was to be used for the child's education expenses more logical. In my view, the father is entitled to a credit towards his obligations pursuant to section 7 of the Guidelines. I set the credit at $23,000, taking into account the father's comments that the child could keep between $500 and $1,000 for her personal expenses. The $23,000 credit applies only to the father's obligations with respect to post-secondary education expenses and not child support." - See paragraphs 82 to 85.

Family Law - Topic 4175

Divorce - Corollary relief - Practice - Costs - General (incl. considerations) - A mother sought child support payable from September 2012, when the parties' daughter had resumed post-secondary studies - The New Brunswick Court of Queen's Bench, Family Division, determined the issues accordingly - The court awarded the mother costs, fixed at $10,000 including disbursements, where she had been the most successful party - See paragraphs 90 to 94.

Cases Noticed:

L.P.S. v. M.S.F. (2015), 435 N.B.R.(2d) 379; 1134 A.P.R. 379 (C.A.), refd to. [para. 40].

R.L. v. K.K., [2012] Q.J. No. 5882, refd to. [para. 48].

Talbot v. Canada, [2013] T.C.J. No. 5, refd to. [para. 53].

J.P. v. R.R. (2004), 278 N.B.R.(2d) 351; 728 A.P.R. 351; 2004 NBCA 98, refd to. [para. 78].

D.M.A. v. M.S. (2012), 391 N.B.R.(2d) 189; 1013 A.P.R. 189; 2012 NBCA 63, refd to. [para. 79].

Selig v. Smith (2008), 266 N.S.R.(2d) 102; 851 A.P.R. 102 (C.A.), refd to. [para. 80].

Calvy v. Calvy (2015), 440 N.B.R.(2d) 85; 1148 A.P.R. 85; 2015 NBCA 53, dist. [para. 90].

Counsel:

Avocats:

Alison J. Ménard, for the applicant;

Thomas Maillet, Q.C., for the respondent.

This case was heard on February 4 and 5 and April 2, 2015, by Robichaud, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Moncton, who delivered the following decision, in both official languages, on August 12, 2015.

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