Corsano v. Simms

Corsano v. Simms Court Court of Appeal Date 2002-10-08 Citation 2002 NSCA 125 Docket CA 178304 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); Chipman, David (Honourable Justice); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Corsano v. Simms - 2002 NSCA 125 - 2002-10-08 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Corsano v. Simms, 2002 NSCA 125] Date: 20021017 Docket: CA 178304 Registry: Halifax Between: Theresa Elsie Corsano Appellant v. Joseph Frederick Simms Respondent Judge(s): Bateman, Chipman and Hamilton, JJ.A. Appeal Heard: October 8, 2002, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bateman, J.A.; Chipman and Hamilton, JJ.A. Counsel: Theresa M. Forgeron, for the appellant Myrna L. Gillis, for the respondent Reasons for judgment: [1] This is an appeal by the recipient mother, Theresa Elsie Corsano, from an order varying the maintenance payable by the father, Joseph Frederick Simms, for a child in her care, Tyson Joseph Simms born July 19, 1983. The mother’s application to vary was heard by Justice Daryl W. Wilson of the Supreme Court of Nova Scotia sitting in Sydney. [2] The parties agree that this Court’s task is limited to correcting errors of law or manifest errors of fact. (Edwards v. Edwards (1994), 133 N.S.R. (2d) 8 (N.S.C.A.)). In Hickey v. Hickey, [1999] 2 S.C.R. 518 L’Heureux-Dubé J., for the Court, detailed the proper approach by a court of appeal to the review of a support order: 10 When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. 11 Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. . . . 12 There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. (Emphasis added) [3] This appeal concerns two aspects of the judge’s decision to vary the support: (i) the date of the commencement of the variation of maintenance; and (ii) the amount of the father’s contribution to the child’s post-secondary educational expenses. The appeal is illustrative of the difficulty facing judges at both the trial and appeal level when the parties are not represented by counsel at trial, as was the case here. [4] The application to vary was initiated by the mother in April of 2000. Counsel for the mother submits that the original purpose of the application was to bring the pre-Guideline support order up to the basic Table amount. Apparently, however, there was, at that time, and may still be a lengthy delay between the initiation of the application and the hearing. By the time the matter was heard, on October 1, 2001, the only point of dispute between the parties appears from the record to have been the amount of the father’s contribution to the child’s university expenses, although the father had continued to pay the pre-Guideline amount of maintenance. Tyson, at the time of the hearing, was enrolled in his first year of studies at St. Thomas University in Fredericton, New Brunswick. At the variation hearing the mother was seeking the basic Table amount of support plus a contribution in the amount of one-half of Tyson’s annual university expenses, estimated to be $12,058 in total. [5] Leading up to the variation hearing the father had been paying child support of $368 monthly. This was embodied in a pre-Guideline consent order. The maintenance was therefore tax deductible to the father and taxable to the mother. At the time of the hearing the mother, who suffers poor health, was not expected to earn income for that year, nor in future. Accordingly, for at least the tax year 2001, she received the support, free of tax. [6] Under the Federal Child Support Guidelines the father’s basic Table amount of support would be $391, non-deductible by the father, tax free to the mother. Both mother and father had remarried and had child(ren) of the new relationship. The father earned about $47,000 annually. Each of their spouses had income. [7] In a decision delivered in February of 2002, the judge ordered that the Guideline amount of support commence effective September 1, 2001, which coincided with Tyson’s entry into university. [8] Over the ten years since the parties divorced, the father had funded an educational savings plan for the son. This was not done pursuant to court order or any agreement of the parties. From that plan the son had received $3019 toward his first year university expenses, and would receive about $1000 in each of the two following years, if attending university. [9] The judge was satisfied that some amount of post-secondary educational expenses was reasonable and necessary, the parties having anticipated that Tyson would attend university. There was no dispute that the actual university expenses were as stated by the mother, $12,068. [10] “Child support” under the Guidelines means the basic Table rate and any amount for “extraordinary expenses”as defined by s. 7: 7. (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: . . . (e) expenses for post-secondary education; and (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. (3) In determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. (Emphasis added) [11] In addressing the contribution to university expenses, the judge was clearly considering the requirements of s.7 of the Guidelines. While there was no dispute that Tyson’s actual university expenses exceeded $12,000, the judge was statutorily required, before making an order, to consider the reasonableness of such expenses in the context of the parents’ means. The only reasonable inference from the decision is that the judge was not satisfied that such expenses were reasonable in these circumstances. [12] He commented that those expenses could have been significantly reduced by the son attending the local university in Sydney, Nova Scotia where he lived, or by moving to Halifax to live with his father and attending one of the several universities here. He noted that the basic Table amount already includes provision for shelter, meals and miscellaneous expenses. In the circumstances of these parties the judge expressed reluctance to order that Mr. Simms pay the basic Table amount and a further contribution to room, board and miscellaneous expenses. He concluded that, here, a reasonable amount of university expenses was $4698, limited to tuition, books and fees. The judge reduced that amount by Tyson’s summer savings of $600 and the educational savings plan contribution of $3019. This left a shortfall of about $1000. Mr. Simms had submitted that if the educational credit for Tyson was transferred to him, the tax saving would be $1247. Ms. Corsano provided no evidence as to the tax saving available if the credit was claimed by her new spouse. As his income substantially exceeded that of Mr. Simms, it was reasonable to infer that the tax savings from the credit would exceed the shortfall in expenses. The judge concluded, therefore, that there were no “reasonable” university expenses to be shared. [13] The judge also considered alternate methods of accounting for the educational expenses as is authorized by the Guidelines: 3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. (Emphasis added) [14] He correctly concluded that there would be little difference in the total amount paid by the father applying s.3.(1) or s.3.(2) of the Guidelines. [15] There was some question whether Tyson would continue, in following years, to attend a university away from home. The judge expected that the reduced amount available from the education savings plan in later years would be made up by an increase in Tyson’s summer savings from employment. [16] We are not persuaded that the decision discloses error in principle, reflects a significant misapprehension of the evidence or is clearly wrong, as is required for intervention. While the Table amount of child support might have been made effective the date of application, at the hearing the applicant did not request an order retroactive to that date, there was no clear evidence before the judge of the mother’s income tax liability for the support paid in the year 2000, there were no submissions to the judge on the appropriate effective date for the Order and the focus of the proceeding, as earlier stated, was the increased costs consequent on Tyson’s attendance at university. The judge was alive to the question of retroactivity, having dated the Order effective September 1, 2001. This was not an illogical date on which to start the varied amount. [17] The appeal is dismissed with costs to the respondent in the amount of $1500 inclusive of disbursements. Bateman, J.A. Concurred in: Chipman, J.A. Hamilton, J.A.