Selig v. Smith,

• Jurisdiction: Nova Scotia
• Judge: Roscoe, Cromwell and Hamilton, JJ.A.
• Neutral Citation: 2008 NSCA 54
• Citation: (2008), 266 N.S.R.(2d) 102 (CA),2008 NSCA 54,56 RFL (6th) 8,[2008] CarswellNS 307,[2008] NSJ No 250 (QL),168 ACWS (3d) 142,266 NSR (2d) 102,851 APR 102,(2008), 266 NSR(2d) 102 (CA),851 A.P.R. 102,266 N.S.R.(2d) 102,[2008] NS.J. No 250 (QL),266 NSR(2d) 102
• Date: 18 June 2008
• Court: Court of Appeal of Nova Scotia (Canada)

Selig v. Smith (2008), 266 N.S.R.(2d) 102 (CA);

    851 A.P.R. 102

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JN.036

Bertha Selig (appellant) v. Gary W. Smith (respondent)

(CA 284187; 2008 NSCA 54)

Indexed As: Selig v. Smith

Nova Scotia Court of Appeal

Roscoe, Cromwell and Hamilton, JJ.A.

June 18, 2008.

Summary:

Parents of two children (now aged 23  and 22) divorced in 1996 after 14  years' marriage. In 2000, the original child support order was varied by consent to $829 per month plus $40 per month for s. 7 expenses based on the father's annual income of $62,164.44. In 2003, the daughter commenced university. In September 2006, the son began an apprenticeship program to become a mechanic after two years of community college. In August 2006, the father applied to terminate child support and sought a judicial determination of his contribution to the daughter's education costs. In October 2006, the mother applied for a retroactive review of child support and a contribution towards the education costs of both children.

The Nova Scotia Supreme Court, in a judgment not reported in this series of reports, held that the son ceased being a child of the marriage in July 2006 and terminated child support as of that date. The father was ordered to pay 50% of the Guidelines amount ($309.50 per month) for the daughter while she was at university and the full $619 per month while she lived with the mother. Further, the father was ordered to pay his proportionate share (73.5%) of the daughter's education costs, after deducting her income from summer employment and part-time employment during the school year, any bursaries and scholarships, and 50% of her student loans. The court declined to award retroactive support for the son, as he ceased being a child of the marriage before the mother applied for it. Retroactive support for the daughter was ordered starting as of April 2003, the date when the father was first advised that she would be attending university and a contribution was sought from him. The mother appealed, submitting that the trial judge erred in determining the child support and proportionate share of educational expenses payable by the father for the daughter and erred in interpreting the case of D.B.S. v. S.R.G. (S.C.C.) in fixing the effective date of the variation of child support.

The Nova Scotia Court of Appeal, applying a deferential standard of review, dismissed the appeal where the trial judge made no error in principle, did not significantly misapprehend the evidence and the award was not clearly wrong.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - A father was ordered to pay his proportionate share (73.5%) of his daughter's education costs, but only after deducting her income from summer employment and part-time employment during the school year, any bursaries and scholarships she received, and 50% of her student loans - The mother submitted that the trial judge erred in reducing the father's proportionate share by deducting all of the daughter's earnings and 50% of her student loans - The Nova Scotia Court of Appeal noted that there were cases where only a portion of the child's income was taken into account and other cases where the availability of student loans was considered only where the parents were unable to meet the total education expenses - The trial judge did not err in considering 50% of the student loans and the full amount of the daughter's income - The court stated that "there is no hard and fast rule that student loans should be the last resort. In other cases ... the child was expected to contribute the full amount of any available student loans. Each case depends on its own particular facts and although the trend seems to be leaning towards determining the parents' ability to contribute before resorting to student loans, it cannot be said that it is an error in principle or a palpable and overriding error of fact in a case where the divorced parents' total income approximates $100,000 for a judge to assume that an adult child will be expected to borrow to finance post secondary education. The higher the parents' income, the less the student should be required to contribute. There is no exact right answer in these cases. So long as the amount ordered is reasonable in the circumstances, this court should be slow to intervene." - See paragraphs 14 to 20.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Parents of two children (now aged 23  and 22) divorced in 1996 after 14  years' marriage - In 2000, the original child support order was varied by consent - In 2003, the daughter commenced university - In September 2006, the son began an apprenticeship program to become a mechanic after two years of community college - In August 2006, the father applied to, inter alia, terminate child support - In October 2006, the mother applied for a retroactive increase in child support - The trial judge held that the son ceased being a child of the marriage in July 2006 and terminated child support as of that date - The judge declined to award retroactive support for the son, as he ceased being a child of the marriage before the mother applied for it - Retroactive support for the daughter was ordered starting as of April 2003, the date when the father was first advised that she would be attending university and a contribution was sought from him - The mother appealed, submitting that the trial judge erred in interpreting the case of D.B.S. v. S.R.G. (S.C.C.) in two respects: (1) in determining that no retroactive support could be ordered respecting the son where he was no longer a child of the marriage on the date retroactive support was first claimed and (2) in limiting retroactive support for the daughter to the three year period preceding the application - The Nova Scotia Court of Appeal, applying a deferential standard of review, dismissed the appeal - Neither retroactive child support nor s. 7 Guideline expenses were available when the child was no longer a child of the marriage at the material time (i.e., when application made) - As for limiting the daughter's retroactive support to three years, the court stated that the judge "made factual determinations that were fully supported by the evidence. Unless the judge committed a palpable and overriding error, his decision respecting the effective date of the variation in child support should be upheld." - See paragraphs 21 to 33.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance awards - Appeals (incl. jurisdiction) - The Nova Scotia Court of Appeal referred to the deferential standard of review on an appeal from a trial judge's decision respecting child support: "It is not this court's function to retry the case. We are not to overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong." - See paragraph 12.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - [See Family Law - Topic 3998 ].

Family Law - Topic 4045.14

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Where child has income or capital - [See Family Law - Topic 3998 ].

Cases Noticed:

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 8].

Lu v. Sun (2005), 235 N.S.R.(2d) 353; 747 A.P.R. 353; 2005 NSCA 112, refd to. [para. 12].

Robertson v. Robertson, [2007] N.S.R.(2d) Uned. 48; 2007 NSSC 128, refd to. [para. 16].

J.C.R. v. J.J.R., [2006] B.C.T.C. Uned. 735; 2006 BCSC 1422, refd to. [para. 16].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 16].

A.W.H. v. C.G.S. (2007), 255 N.S.R.(2d) 338; 814 A.P.R. 338; 2007 NSSC 181, refd to. [para. 16].

Everill v. Everill (2005), 229 N.S.R.(2d) 198; 725 A.P.R. 198; 2005 NSSF 8, refd to. [para. 20].

Houston v. Houston, [2007] N.S.R.(2d) Uned. 141; 2007 NSSC 277, refd to. [para. 20].

Tapping v. Tapping, [2007] B.C.T.C. Uned. B43; 2007 BCSC 209, refd to. [para. 26].

Surerus-Mills v. Mills, [2006] O.T.C. Uned. A09 (Sup. Ct.), refd to. [para. 26].

Counsel:

Julien S. Matte, for the appellant;

James P. DiPersio, for the respondent.

This appeal was heard on June 9, 2008, at Halifax, N.S., before Roscoe, Cromwell and Hamilton, JJ.A., of the Nova Scotia Court of Appeal.

On June 18, 2008, Roscoe, J.A., delivered the following judgment for the Court of Appeal.