Carruthers v. Carruthers

2015 BCSC 104 Carruthers v. Carruthers

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Carruthers v. Carruthers, 2015 BCSC 104 Date: 20150126 Docket: 15709 Registry: Quesnel Between: Laureen Margaret Carruthers also known as Laureen Margaret Klein Claimant And Brian Dean Carruthers Respondent And Alice Irene Klein Respondent by Counterclaim Before: The Honourable Madam Justice Ross Reasons for Judgment Counsel for the Claimant: Patricia L. Schmit, Q.C. Counsel for the Respondent: Saundra E. Elson Counsel for the Respondent by Counterclaim: Patricia S. Weber Place and Date of Trial/Hearing: Prince George, B.C. November 19, 2014 Place and Date of Judgment: Quesnel, B.C. January 26, 2015 Introduction [1] There are two applications to determine the amount, if any, that the respondent, Brian Carruthers, will pay for his share of the s. 7 post-secondary education expenses of the oldest child of the marriage, Parker. Parker, who is 18 years of age, has enrolled at Quest University (Quest), a private university located in Squamish, British Columbia. [2] Ms. Carruthers seeks an order for Mr. Carruthers to pay $19,802 in s. 7 expenses annually for Parker. This is in addition to the $3,076 per month Table amount child support that Mr. Carruthers currently pays for the three children of the marriage, including Parker. Ms. Carruthers submits that this represents his proportionate share of 74% of those s. 7 expenses that she

submits total $27,260. [3] Mr. Carruthers' application sought an order that he pay $695 per month directly to the child, Parker, that being the portion of the $3,076 Table amount child support attributable to Parker, as his share of the post-secondary expenses for Parker. At the hearing, Mr. Carruthers conceded that since Parker is under the age of majority, he will continue to pay the Table amount child support, at least until Parker comes of age. His application seeks direction for the amount, if any, that represents his share of Parker's post-secondary education expenses. Background [4] The parties were married on July 29, 1995. There are three children of the marriage; Parker born September 2, 1996, Keaton born November 1, 1998, and Griffin born March 30, 2001. The parties separated on November 6, 2011. [5] The parties were divorced by Order dated April 28, 2014. The Order contained the following terms by consent: 7. Upon the Respondent (Payor) having been found to have a guideline income of $172,000.00 and the Claimant (Recipient) having been found to have a guideline income of $25,000.00 the Respondent (Payor) shall pay to the Claimant (Recipient) the sum of $3,076.00 per month for the support of the children of the marriage, namely: PARKER LAWRENCE CARRUTHERS, born September 2, 1996 KEATON DONALD CARRUTHERS, born November 1, 1998 GRIFFIN WILLIAM CARRUTHERS, born March 30, 2001 (the "Children") payable on the 1st day of each and every month, commencing May 1, 2014.

8. The Claimant and Respondent will each pay their proportionate share of extra ordinary expenses incurred for the benefit of the children with leave to the parties to apply in the event of disagreement. [6] Mr. Carruthers has employment income of $172,000. Ms. Carruthers has employment income of $25,000. Mr. Carruthers pays $3,076 per month Table amount child support and $2,200 per month spousal support. Ms. Carruthers did not file a financial statement. Mr. Carruthers did do so. His statement shows essentially no savings and significant debt. [7] During the marriage, the parties had agreed that post-secondary education was a priority for the children. They did not discuss the prospect of any of the children attending a private university. The parties do not have any savings for post-secondary education for the children. During the marriage, Mr. Carruthers' father had offered to assist the parties with the post-secondary education expense of the children. However, at least to this point, he has not done so. [8] During the summer break in 2013, Lawrence Klein, Ms. Carruthers' brother, organized and paid for Parker to attend a Summer Scholars Program at Quest. Mr. Carruthers was not consulted about this attendance. [9] Mr. Carruthers initiated communications with Ms. Carruthers about Parker's plans for post-secondary education in September 2013 in order to be involved in the

planning and decision-making. Ms. Carruthers advised him that Parker was considering Quest University. She stated that Parker was willing to contribute, as were her brother and mother. Mr. Carruthers stated that he did not support Quest, given the cost, their financial circumstances, the fact that they had three children to provide for, and that Parker had not put aside enough of a contribution from his earnings. [10] It appears that the parties did not have further discussions about Parker's possible enrollment at Quest until February 2014. [11] Mr. Carruthers was informed in February 2014 that Parker had been accepted at Quest University. Although he had also been accepted at the University of Northern British Columbia (UNBC) and Thompson Rivers University in Kamloops, he had decided to attend Quest. Mr. Carruthers remained opposed to the decision on the basis of the concerns he had expressed in September 2013 and, in addition, a further concern that course credits from Quest might not be transferrable to other universities, should Parker either need or wish to transfer at some point. [12] The post-secondary education costs for Quest during the year September 2014 to April 2015 are as follows: a. tuition Sept. to Dec., 2014 and Jan. to Apr., 2015 $30,000.00 b. room and board 9,450.00 c. books (estimate) 350.00 d. student fees 200.00 e. less scholarship/financial

aid (15,000.00) subtotal net $25,000.00 [13] In addition, Ms. Carruthers claims $2,260 for transportation costs between Williams Lake and Squamish and a Squamish bus pass, for a total claim of $27,260. [14] The total costs of UNBC for the same period would be: Tuition $5,994 Room and Board $8,793 Books $350 Total $15,137 [15] Mr. Klein promised to match any scholarships that Parker received and did provide $7,000, which matched the scholarship portion of the aid Parker received from Quest. Parker's grandmother provided a gift of $5,000, which Parker indicated he would use for his schooling. [16] The evidence is not clear with respect to Parker's contribution. His T4 for 2013 shows an income of $17,143. Ms. Carruthers deposed in her fifth affidavit that he saved $4,800 to be used toward his education. Parker wrote in a letter to his father dated October 7, 2014, attached to Mr. Carruthers' fifth affidavit, that he had saved approximately $6,000 to put towards his schooling; however, his bank balance for August 26, 2014, immediately prior to the deposit of the $5,000 from his grandmother, was $368.19. Ms. Carruthers deposed that Parker was giving a portion of his income to her mother, who gives better interest than the bank. There is, however, no evidence of how much money was involved or what has happened with those funds that were apparently given to her mother. [17] The

admission form issued by Quest stated that students, such as Parker, who had been awarded a Need-Based Bursary would be provided with an allocation to a Work Study Program where they would have the opportunity to earn up to $1,320 during the course of the academic year. However, there is no evidence that Parker has taken advantage of this opportunity. In addition, there is no evidence with respect to student loans. Legal Principles [18] The Guidelines provide: 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; (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) Subject to subsection (4), 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. [19] Section 7 of the Guidelines is permissive. The factors to be considered by the court were described by Madam Justice Gerow in C.L.C. v. J.C.W., 2005 BCSC 1495 at para. 19: [19] Section 7 of the Guidelines is permissive. The factors to be considered in determining whether it is appropriate to provide an amount to cover special or extraordinary expenses are: · the necessity of the expense in relation to the child's best interests; · 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 separation. [20] In Thomson v. Thomson, 2006 BCSC 581, Mr. Justice Goepel stated the following at para. 35: [35] Prior decisions have recognized the importance of post-secondary education and have held that there is an obligation on both parents to assist their children, to the extent they are able, with the reasonable and necessary expense of such an education: Carr v. Wilson, 2005 BCSC 1495; Daicar-Gendron v. Gendron (2004), 35 B.C.L.R. (4th) 326 (S.C.). The opportunity to pursue post-secondary education is however a privilege not a right: Whitley v. Whitley, [1997] B.C.J. No. 3116 (QL) (S.C.). Children cannot assume that their parents will pay the cost of their university

education. In considering an application under s. 7 of the Guidelines to pay for post-secondary education, the court should not forget that absent separation, parents have no legal obligation to pay for their children's education. Many children have to fund their own education with limited or no parental support even in situations where the parents can afford to do more. [21] The simple fact of an expense being incurred does not automatically demonstrate its necessity or reasonableness: Thomas v. Thomas, 2000 BCSC 585, at para.

24. The court may limit the amount or deny expenses where the amount is not within the means of the parties: Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (S.C.). [22] In Z.D.D. v. R.C.G., 2004 BCSC 1239, Mr. Justice Melnick stated at para. 27: [27] When children embark on a program of education the cost of which is remarkably higher than that which would be the case in most other career paths at either university or college, there is a positive obligation on them (and on any custodial parent who seeks to recover a substantial portion of the cost of that education as an extraordinary expense) to enter into meaningful discussions with the parent who is expected to contribute. This, too, is based on the concept of utmost good faith. In the absence of doing so, that parent should not be expected simply to provide a blank cheque. [23] In Z.D.D., the son, Z., had enrolled in an expensive combined commercial pilot and university program without consultation with or agreement from his father. Melnick J. concluded that, in the circumstances, it was not appropriate for the father to bear his proportionate share of the costs of that program, stating at para. 30: [30] I agree with the submission of Mr. Nicol for Mr. R.C.G. that, in these circumstances, Mr. R.C.G. should not be expected to contribute to Z.'s education simply on the basis of proportionate shares with Ms. Z.D.D.. I would direct

that Z. be responsible for funding 50 percent of his own education given that he continues in this particular program. Ms. Z.D.D. and Mr. R.C.G. will be responsible for paying the balance in proportion to their incomes. In making this order, I have assumed Z.'s past and continued education expenses to be as set out in paragraph 7 above. If Z. is unable to fund his portion of his education, I leave it to Ms. Z.D.D. and Z. to work that out. [24] Z.D.D. was followed in C.L.C. In that case, A., one of the children of the marriage, was attending Princeton University. The father had not been consulted about the decision. Gerow J. concluded that in the circumstances the father should not be expected to contribute to A.'s education on the basis of a proportionate share. He had indicated in an email that he was able and willing to contribute up to $6,000 for private school on a one-third shared basis. He was ordered to contribute one-third of the Princeton fees of $16,500 or $5,500. [25] These decisions demonstrate that while proportionate sharing based upon relative income is the general rule, the court has discretion to depart from proportionate sharing in appropriate circumstances. Discussion [26] Ms. Carruthers submits that because they are not obliged to contribute to Parker's education, the contributions from her brother and Parker's grandmother should not be deducted in

determining the expense. I agree that extended family cannot be ordered to contribute to these costs. I also agree that the means of extended family members does not form part of the analysis of the means of the family. However, where, as here, family members have provided assistance, those amounts should be included in the analysis of the costs. To do otherwise would be to provide the payee with a windfall. [27] I am satisfied that, given the means of the parties and their expectations for their children's education during the marriage, it is appropriate for both parents to contribute to Parker's post-secondary education. However, the cost of the Quest program is significantly higher than that of a public university in the province, in particular the other two institutions at which Parker was also accepted. Mr. Carruthers was not consulted and did not approve of the decision to register at Quest. I find that, even taking into account the contributions of Parker's grandmother and Mr. Klein, the cost of the Quest program is not within these parties' means, particularly considering the ages of the other children. If Keaton attends post- secondary schooling, his attendance will overlap with Parker's, and Griffin's will overlap with Keaton's. In all of the circumstances, I conclude that Mr. Carruthers should not be expected to contribute his proportionate share of the Quest

costs. [28] When the contributions from Mr. Klein, Parker's grandmother, and a $5,000 contribution from Parker are deducted, and before addressing transportation expenses, there remains $8,000 in expenses in relation to Quest. A 74% share of that is $5,920. After deducting a $5,000 contribution from Parker and the grandmother's contribution, the remaining costs for UNBC would be $5,137. A 74% contribution of that amount is $3,801. [29] In my view, at a contribution of $5,000, Parker is not making a sufficient contribution to the cost of the Quest program. I conclude that the $8,000 remaining of the Quest costs for this year should be born at $4,000 by Mr. Carruthers, $2,000 by Ms. Carruthers, and $2,000 by Parker. The travel costs should be dealt with as they arise on a formula of 74%/26%. [30] There will be an order that Mr. Carruthers pay $4,000 as his share of the education expenses for Parker incurred during the period September 1, 2014 up to and including April 30, 2015. The parties will share Parker's travel costs as they arise during this period on a formula of 74% for Mr. Carruthers and 26% for Ms. Carruthers. There will be a review of the issue of ongoing s. 7 expenses in June 2015. Success has been divided. There will be no order for costs of this application. "Ross J."