N.M. v. D.M.

N.M. v. D.M. Court Supreme Court Date 2009-06-02 Citation 2009 NSSC 178 Docket SFSND 1206-005321 Judge/Registrar/Adjudicator Wilson, Darryl W. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: N.M. v. D.M., 2009 NSSC 178 Date: 20090602 Docket: SFSND1206-005321 Registry: Sydney, Nova Scotia Between: N.M. Petitioner v. D.M. Respondent ____________________________________________________________ DECISION ____________________________________________________________ Judge: The Honourable Justice Darryl W. Wilson Justice of the Supreme Court of Nova Scotia (Family Division) Heard: January 19, 2009 & January 20, 2009 Written Decision: June 2, 2009 Counsel: Darren Morgan, Counsel for the Petitioner Terrance Sheppard, Counsel for the Respondent By the Court: [1] N.M. petitions for divorce from D. M. The parties were married May 1, 1982 and have a son, S., born August 8, 1986. S. is enrolled in the Bachelor of Business Administration Degree Program at Cape Breton University and he has cerebral palsy. [2] On May 1, 2006, the parties twenty-fourth (24th) wedding anniversary, the husband notified his wife that he wanted to leave the marriage. This announcement shocked her. The parties spent the next few months discussing whether the marriage should continue. There was a final separation on or about July 9, 2006. The father moved out of the matrimonial home. The mother remained in the home until the end of August 2006 when she relocated to Halifax. The father then returned to the matrimonial home. The parties agreed to sell the matrimonial home and that the father would complete renovations that had been planned to make the home more attractive to a potential buyer. [3] In October 2006 the parties started to talk about separating their finances. The wife purchased a “how to book” which provided instructions on preparing your own Separation Agreement. The parties wanted to avoid legal costs. They reached an agreement which was reduced to writing, signed and executed in the presence of witness in December 2006. [4] The husband filed his Petition for Divorce on February 2, 2007 seeking a divorce, custody, access, child support, division of assets and costs. [5] The wife’s Answer, filed on August 21, 2008 requested that the Separation Agreement signed by the parties in December 2006 be enforced. She also sought relief concerning custody, access, child support, division of property, division of pension and costs. [6] The parties’ only child is twenty-two (22) years of age and he informed his parents at the time they were preparing the Separation Agreement that he did not want either parent to have custody. They respected his wishes and did not include any reference to custody or child support in the Separation Agreement. [7] The Separation Agreement dealt only with division of assets and debts. There were no provisions respecting spousal support. [8] The issues for determination are: (1) Should the Separation Agreement of December 2006 be enforced? (2) If the Separation Agreement is not enforced, what is the appropriate division of matrimonial property and debt as between the parties. (3) Should there be an award of child support payable with respect to S. and, if so, what is the appropriate quantum of child support? [9] Before dealing with those issues, I will consider whether a Divorce Judgment shall issue. The jurisdictional and procedural requirements have been met. There is no possibility of reconciliation. The grounds have been established. There has been a break down of the marriage since it has been established they have lived separate and apart for at least one (1) year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding. A Divorce Judgment shall issue. THE ENFORCEMENT OR VARIATION OF SEPARATION AGREEMENT, CONTENT OF THE AGREEMENT [10] As earlier stated, the parties drafted their our Separation Agreement which was reduced to writing, signed and witnessed on December 13, 2006. The agreement dealt only with matrimonial property and debt. Neither party was seeking spousal support. Although the parties discussed child care and support issues, the agreement did not contain any provisions related to their son. [11] The agreement identified the matrimonial home, a 2004 Pontiac Montana van and R.R.S.P.’s as matrimonial assets. The mortgage on the home, the vehicle loan, line of credit, visa account and a Revenue Canada debt were listed as matrimonial debts. [12] The husband was granted exclusive possession of the home until it was sold. The parties agreed on a sale price. The home was sold with the closing date December 15, 2006. The mortgage, outstanding municipal taxes, and disposition costs were paid from the sale proceeds. In addition each party’s share of the matrimonial debts listed in the agreement was paid from the sale proceeds. The balance was divided equally between the parties. [13] The R.R.S.P.’s were divided equally. Both parties worked for the Federal Government and earned a comparable income. Each party kept their Canada Pension Plan and employee pension plan benefits. [14] The wife was to transfer ownership of the 2004 Pontiac Montana van to the husband when he arranged for the bank to release her from liability for the loan. This was done. The vehicle loan balance as of December 2006 was $25,030.00. The parties fixed the value of the van at this amount. [15] The husband claims the Separation Agreement is unconscionable and should be varied so that the wife is required to pay fifty percent (50%) of the vehicle loan or $12,515.00. NEGOTIATION PROCESS [16] In September 2006, the mother relocated to Halifax and the father assumed exclusive possession of the matrimonial home. The parties communicated by email and telephone on matters affecting their son including financial issues. According to the father, the conversations were friendly and there was not a lot of hostility. According to the mother, the conversations were not friendly. [17] The parties discussed their own financial circumstances. They agreed on the amount of debt that was a joint responsibility and the amount of debt that was incurred individually after separation. The parties did not want to incur substantial legal costs. The mother forwarded the father a copy of a sample Separation Agreement and sought his opinion on whether the agreement could serve as a basis for resolving their issues. He agreed. The parties communicated by email. They discussed the issues, drafted proposals and made changes. They were having difficulty agreeing on responsibility for the motor vehicle loan. During the negotiation process, the mother wanted to sell the van and pay off the bank loan. With her move to Halifax she could not afford the costs of the loan. The father said the mother initially agreed to share the costs of the loan because the vehicle would be kept for S.’s use. Since the discussions were going nowhere, the mother sought legal advice. By email dated November 24, 2006 she informed the father that he could either take ownership of the van and responsibility for the debt or the van would have to be sold. The father was not happy. He was concerned about the impact the sale of the vehicle would have on S.’s independence. The mother discussed with S. that she could not afford to keep the van. Although S. initially said he could get along without the van, his perception has changed and now he realizes he would not have the social life he enjoys today without the van being available for his use. [18] The van originally cost $35,000.00. The van was registered in the mother’s name. It was purchased in 2004 to replace a family vehicle which had been stolen and destroyed. The van was refitted to make it wheelchair accessible to S. who was in highschool at the time. The costs for refitting were paid with funding from a government program. S. wanted the use of the van when he was going out with friends. A driver was necessary to accompany S.. The van was used as the family vehicle until the parties separated in July 2006. The van was used by the Respondents after S. moved into his university residence in the Spring of 2006 before the parties separated. The wife used the van during the summer of 2006 before relocating to Halifax. The father used the van after the mother relocated to Halifax until he began co-habiting with a new partner in February 2007. The father uses his partner’s vehicle for transportation purposes to work and other activities. Since February 2007, the van has been parked at the university where it is available for S.’s use. [19] As part of the Separation Agreement, the father agreed to take ownership of the van and responsibility for paying the associated bank loan rather than sell the van. [20] The father’s position is that the agreement provision with respect to the van is unconscionable because he was exhausted physically and mentally when he agreed to accept full responsibility for the loan. At the time he signed the Separation Agreement he was under a great deal of stress because: (1) he was trying to get the home ready for sale; (2) he was engaged in ongoing discussions with the government over S.’s care. (3) he was learning to prepare employee remittences to Revenue Canada for S.’s caregiver which had previously been done by the mother; (4) he was dealing with a human rights complaint against the government; (5) he was looking after his diabetes which affected his energy level and ability to get things done; (6) the mother told him she would not agree to the sale of the house if her name was not removed from the bank loan; (7) he did not get legal advice prior to the signing of the agreement because the closing date for the sale of the home was fast approaching and he did not have the opportunity to speak to a lawyer. [21] The father did not see a personal counsellor or receive any medical treatment for stress or other illnesses while negotiating the agreement. [22] The wife said she experienced a great amount of emotional stress because of the marriage breakdown. The husband’s announcement that he wanted to end the marriage left her with a sense of personal failure and loss of community. Although she knew she was leaving her son, family and friends, she felt a need to be away from her husband. According to her, she was barely functioning. In her opinion, the agreement is fair. The vehicle was not obtained originally for S.’s exclusive use. S. was able to use the vehicle when he needed it just like any other teenage boy or young adult. In her opinion, the father’s health was no worse after separation than before separation and he was more emotionally prepared for the separation than her. The mother said that S. used the handi-trans service during his first year of university and it is available for his use if the van is sold. THE LAW [23] Sections 24 and 29 of the Matrimonial Property Act, R.S.N.S. 1989 c.275 as amended provide: [24] A marriage contract or a separation agreement is void unless it is in writing and is signed by the parties and witnessed. R.S., c. 275, s. 24. [29] Upon an application by a party to a marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. R.S., c. 275, s. 29. [24] At paragraph 81 in Pelach v. Pelach [1987], 1 S.C.R. 804, Justice Wilson stated: It seems to me that where the parents have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the break down of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. This should be the overriding policy consideration. [25] Justice Wright in Coady v. Osberg, (2004) N.S.S.C. 127, beginning at paragraph 11, reviews the meaning of unconscionability . [11] The principles to be applied in determining the unconscionability of contracts were reviewed by the Nova Scotia Court of Appeal in Stevens v. Stevens (1983) 57 N.S.R. (2d) 141. Essentially, it is the combination of inequality in the bargaining position of the parties and improvidence in the terms of the agreement which alone may invoke this jurisdiction. As Justice Hallett put it in the later decision of Crouse v. Crouse (1988) 88 N.S.R. (2d) 199 (at para. 16): To succeed on the ground that the bargain was unconscionable, the petitioner must show that there was inequality in the position of the parties arising out of ignorance, need or distress which left her in the power of her husband and, secondly, that the bargain she reached was substantially unfair to her. [12] The second branch of the analysis, the Miglin test, is captured in the following extract from the Supreme Court headnote of the case: An initial application for spousal support inconsistent with a pre‑existing agreement requires a two‑stage investigation into all the circumstances surrounding that agreement, first at the time of its formation, and second, at the time of the application. Unimpeachably negotiated agreements that represent the intentions and expectations of the parties and that substantially comply with the objectives of the Divorce Act as a whole should receive considerable weight. Holding that any agreement that deviates from the objectives listed in s. 15.2(6) would inevitably be given little or no weight would seriously undermine the significant policy goal of negotiated settlement and would undermine the parties' autonomy and freedom to structure their post‑divorce lives in a manner that reflects their own objectives and concerns. It would also render the direction to consider prior agreements in s. 15.2(4)©) meaningless. In searching for a proper balance between consensus and finality on the one hand, and sensitivity to the unique concerns that arise in the post‑divorce context on the other, a court should be guided by the objectives of spousal support listed in the Act, but should also treat the parties' reasonable best efforts to meet those objectives as presumptively dispositive of the spousal support issue. The court should set aside the wishes of the parties as expressed in a pre‑existing agreement only where that agreement fails to be in substantial compliance with the overall objectives of the Act, including certainty, finality and autonomy. At the first stage, the court should look at the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it, including any circumstances of oppression, pressure or other vulnerabilities. Circumstances less than "unconscionability" in the commercial law context may be relevant, but a court should not presume an imbalance of power. Further, the degree of professional assistance received by the parties may be sufficient to overcome any systemic imbalances between the parties. Next, the court must consider the substance of the agreement to determine whether it is in substantial compliance with the Act. Assessment of an agreement's substantial compliance with the entire Act will necessarily permit a broader gamut of arrangements than would be the case if testing agreements narrowly against the support order objectives in s. 15.2(6)... At the second stage, the court must assess whether the agreement still reflects the original intentions of the parties and the extent to which it is still in substantial compliance with the objectives of the Act. Accordingly, the party seeking to set aside the agreement will need to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned. Some degree of change in the circumstances of the parties is always foreseeable, as agreements are prospective in nature. Parties are presumed to be aware that health, job markets, parental responsibilities, housing markets, and values of assets are all subject to change. It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. [13] As can be readily observed, the s. 29 analysis under the Matrimonial Property Act and the analysis under the first stage of the Miglin test invoke similar considerations. The court must first assess the circumstances or conditions under which the agreement was negotiated and executed in determining whether or not there was a power imbalance owing to oppression, pressure or some other vulnerability which one party took advantage of, and which was not negated by the professional legal assistance received by the other. The court must then look at the overall fairness of the agreement and, more specifically as part of the Miglin test, examine the extent to which the agreement takes into account the factors and objectives set out in the Divorce Act, thereby reflecting an equitable sharing of the economic consequences of the marriage and its breakdown. It is with these principles in mind that I now turn to a review of the relevant facts of this case. [26] Justice Warner in Day v. Day, [2006] N.S.J. No. 135 at paragraph 42 commented on the second stage of the Miglin test as follows: The application of the stage 2 analysis to matrimonial property is problematic. Section 29 of the Nova Scotia Matrimonial Property Act authorizes a Court to vary a Separation Agreement that is unconscionable, unduly harsh to one party or fraudulent. My reading of Hartshorn v. Hartshorn, [2004] 1 S.C.R. 550, 2004 S.C.C. 22, is that if an agreement is fair at the time of separation or execution of the agre3ment, it should not later be interfered with. On that basis, state 2 analysis is not relevant in respect of Ms. M.Z. Day’s challenge to the terms of the property settlement, but is relevant to the spousal support issue. CONCLUSION [27] I agree that stage two (2) of the Miglin test is not relevant in this case. The father is seeking an alteration to the Separation Agreement relating only to the division of matrimonial debt. The onus of proving the agreement is unconscionable rests with the father on a balance of probabilities. In my opinion he has not met that test. My conclusion would be the same even if stage 2 of the Miglin test was applicable. There is no suggestion that the agreement is fraudulent. [28] There was no inequality in the bargaining positions of the parties. Both were employed and earning a comparable income. The agreement was put together by the parties with no domination, abuse or economic pressure except the father’s characterization of the mother’s statement that she would sell the vehicle as a threat. The mother obtained legal advice with respect to the van and the bank loan. She conveyed her position to the father on November 24th. The father had plenty of time to consult a lawyer before the agreement was signed on December 13, 2006. [29] None of the stress factors mentioned by the father were imposed by the mother. The aftermath of divorce can be a difficult and stressful time. The father was in a better position emotionally than the mother to deal with the aftermath of the separation. The father did not seek personal counselling or receive medical attention during the negotiation process for the stress he was experiencing. His health was no worse after separation than before separation. [30] The agreement substantially complies with the Matrimonial Property Act. The parties were married for twenty-four (24) years and the agreement provided for an equal division of the value of the home, R.R.S.P.’s and debt. Each party kept their own pensions. The value of the van and the value of bank loan associated with the van were equal. [31] The van was a matrimonial asset at the time of separation. The father holds title to the van and can sell it at any time. It is not unconscionable or unduly harsh that the father be responsible for the entire amount of the loan. [32] I agree with the submission of counsel for the mother that by asking the mother to compensate him for one-half of the post separation bank loan payments the father is indirectly seeking child support. I understand he wishes his son to experience life to the fullest given his disability. However, he can not force the mother to contribute financially towards the cost of the van based on his desire that it be available for S.’s use. [33] The father’s application to set aside the Separation Agreement is dismissed. The Corollary Relief Judgment shall incorporate the terms of the Separation Agreement as settlement of all claims pursuant to the Matrimonial Property Act. CHILD SUPPORT [34] S. has severe cerebral palsy. He is able to stand but is confined to a wheelchair. He has no functional use of his arms. While physically incapacitated, he is intelligent and capable of completing academic courses at the university level. He requires twenty-four (24) hours care and needs assistance with daily living activities such as eating and going to the bathroom. He is unable to write or take notes. He uses an assisted communication system to speak, although he can say “yes” or “no”. [35] Both parents were involved in attending to S.’s needs as he developed. However, the physically demanding aspects of his care which required lifting was left to the father. The mother was not capable of providing this care and S., as he got older, did not want her to provide this care. The process of feeding S. is not easy and people who feed him require training. S. prefers his father and two or three other people to assist him with feedings. The mother finds it difficult to ensure S. gets the right amount of nourishment. [36] S. wanted to attend university after he completed highschool. He wanted to experience university life to the fullest extent possible including living in residence on campus. The parties jointly decided they would expose S. to the same life experiences enjoyed by people without disabilities as much as possible. [37] The university required S. to have an attendant if he was going to live in residence. The cost of this care would be prohibitive to the parents. They petitioned the Provincial Government for help. S.’s situation was unique. The government had programs which provided funding to persons with mental disabilities but no programs for a physically disabled but mentally competent person like S. [38] S. lived at home during his first year of university (September 2004 to September 2005) because it required time to put in place the necessary supports for S. to go into residence. [39] The parents were able to negotiate a self-managed care program with the Departments of Education, Community Service, and Health that was to begin in September 2005. The Department of Community Services pulled out of the agreement which delayed its implementation. S. eventually moved into a room in residence in March 2006. S.’s move to a university residence was seen by his parents as a good transition from the sheltered world of his parents home to the outside world which awaited him. He would still have family and community resources available if needed. [40] The parents wanted S. to stay at home on weekends but S. wanted to remain in residence. S. had a fear of falling out of bed. He was more comfortable sleeping in a waterbed at university than at home. S.’s resistence to stay at home on weekends caused stress in the family. The father agreed to stay overnight at the university on weekends. [41] The parties separated a few months after S. moved into a university residence. [42] The Bachelor of Business of Administration Program at Cape Breton University is a four (4) year program. This is S.’s fifth year. He attends university during the summer. It is possible for him to complete his studies in the Summer of 2009 with a graduation in the Fall of 2009. However S. is considering stretching out his program so that he will graduate in May 2010. He would be part of a larger graduation class which is an emotional issue for S. GOVERNMENT FUNDING [43] S. receives $2,400.00 a month from the post-secondary disability services division of the Department of Education. This money is distributed to S. by cheque through the Independent Living Resource Center and it is designed to cover the costs of care of an educational attendant for S. The costs covered by funding through the Department of Education includes salary, wages, fringe benefits and employer payroll contributions for the worker employed as S.’s educational attendant. S.’s educational attendant works Monday to Friday from 8:00 a.m. to 4:00 p.m. assisting S. with his needs during the school day. [44] S. receives, by direct deposit, $639.25 from the Department of Community Services which is designated to assist S. with cost of living expenses such as residence and food ($431.25 for shelter expense and $208.00 for personal allowance). [45] S. receives $400.00 from the Persons with Disabilities Partnership Association of Industrial Cape Breton, which is designated to assist with the cost of worker’s compensation assessments for employees hired to provide attendant care. [46] S. receives by direct deposit $3,500.00 a month from the Department of Health. S. is responsible for hiring workers to serve as caregivers for him. S. is their employer. He is responsible for paying them and remitting employee deductions to the government. S. has two (2) regular attendants who are paid $10.00 per hour and attend to S.’s care from 4:00 p.m. on Sundays until 4:00 p.m. on Fridays during the time S.’s educational attendant is not employed. [47] S. receives a Canada Student Loan to cover the cost of his tuition and books but not the cost of his residence. S. receives money through a program known as The Canada Study Grant in the amount of $8,000.00 per school year which is available to students with disabilities to purchase items that they require for their studies as a result of being disabled. [48] There is no funding available to pay for an attendant care on weekends. [49] When the mother moved to Halifax, the father took on the responsibility for payroll remittences which were previously prepared by the mother. This proved difficult for the father and arrears in payroll remittences accumulated. A shortfall occurred in funds available for paying the attendants and the accumulated employee benefits. [50] The father provides attendant care on weekends for S. at the university which is necessary if S. is to remain in residence. The $8,000.00 Canada Student Grant was used by the parties before separation to assist with weekend attendant care. The Respondents also paid for attendant care when S. went on social events. After separation the Canada Student Grant was used to provide attendant care one night a weekend which usually covered four to five months of the year. The father did not indicate he paid for attendant care on weekends from personal finances. However, he provided the care personally on weekends and on occasion during the week when attendants are not available. [51] The mother pays the cost of attendant care when S. visits her in Halifax. [52] When S. graduates from university he will lose the funding he receives from the Department of Education. Employment is possible if he has attendant care. S.’s current funding sources would be stopped if he returned home or resided in a structured residence. [53] The mother said the father after separation never requested a financial contribution toward the cost of S.’s care. They agreed to keep their dealings with S. separate. Each party received approximately $25,000.00 from the proceeds of the sale of the home. The mother has been giving S. $120.00 every two (2) weeks since 2007. Prior to that she provided a grocery card and gift card. She visits S. once a month in Sydney and S. visited his mother approximately four (4) times in Halifax in the last two years. She said she does not have the means to contribute to S.’s attendant care on weekends or pay retroactive support. Her line of credit is at its maximum limit. The funds borrowed were used to purchase furniture for her apartment, pay legal fees and contribute $2,500.00 toward S.’s 2008-2009 tuition. [54] The father’s annual income is $47,447.00. His Statement of Income and Statement of Expenses showed monthly income of $3,947.00 and expenses of $4,007.00. In addition, he claimed income tax expenses of $744.00 monthly, leaving a monthly deficit of $805.00. The father’s expenses include $1,320.00 attributed to S., with the largest part being $672.00 related to owing and operating the van. Also included were expenditures for food, clothing, telephone, laundry and special events. There was a claim of $150.00 for the cost of an insert to S.’s wheelchair. However, this cost is paid through a government program and should be removed from the budget. The father’s annual income tax expense in 2007, when his income was comparable to his current income, was $3,726.70. This translates to a monthly cost of $310.00 and not $744.00 as claimed by the father. Since the amount of his Income Tax Assessment seems low in comparison to his annual income, the father appears to be benefiting from a transfer of the Education and Tuition Tax Credits available to S. Since his income tax returns were not filed, it was not possible to determine if he was claiming medical expenses or attendant care expenses for a dependent child. The father shares expenses with a partner including vehicle expenses. His partner owns her home which is mortgage free. His accommodation cost is minimal. [55] The mother’s annual income as stated in her Statement of Income is $54,726.00 which translates to a monthly amount of $4,560.00. Total monthly expenses are $4,514.00, which includes an Income Tax Expense of $1,183.00, leaving a monthly surplus of $46.00. The mother’s Statement of Expenses includes an allowance of $230.00, which she gives to S. when she is able. The mother did not file her 2006 or 2007 Notices of Assessment from the Canada Revenue Agency. The mother’s monthly income tax expense of $1,086.00 or $13,030.00 yearly appears high when compared to her 2005 Income Tax Assessment of $9,313.00 which was based on an annual income of $52,842.00. The parties were residing together in 2005 and the Court does not have particulars of her tax return. [56] The mother resides in Halifax in a rented apartment and is not sharing expenses with anyone. SUBMISSIONS [57] The father requests ongoing child support of $1,118.73 monthly as the mother’s share of the cost of attendant care on weekends. He also claims there is a monthly shortfall of $38.70 after funds received from the government are allocated for their specific purposes. [58] The father requests retroactive child support from the date of the Petition to the date of hearing in the amount of $26,849.72 (1118.00 X 73 X 24) as the mother’s share of the cost of past attendant care on weekends. [59] The father requests a retroactive contribution of $2,319.79 as the mother’s share of S.’s 2006-2007 tuition costs of $4,000.00. [60] The father’s request for a contribution towards weekend attendant care is based on a forty-eight (48) hour weekend at $10.00 an hour, which translates to $2,080.00 monthly or $24,960.00 yearly. [61] The father’s proposal for a proportional sharing of the attendant care cost is based on an annual income of $52,120.00 for the mother and $46,737.00 for the father, which translates into the mother assuming fifty-two-point-seven percent (52.7%) of this cost. [62] Counsel for the mother submits that S. is not a dependent child of the marriage in need of support as defined by the Divorce Act. The mother’s submission is that S. is an adult who is not entitled to child support. Counsel for the mother submits that S. has resided outside his parents residence since separation and is receiving support from outside agencies to provide him with the necessities of life. [63] Counsel for the mother submits that if S. is in need of support until he finishes his university studies, the father should provide whatever care S. needs in the short-term because he is better off financially and the only one between the two of them who is physically able to care for S. \ CHILD OF THE MARRIAGE - CONCLUSION [64] The Divorce Act, R.S., 1985, c. 3 (2nd Supp) at Section 15.1(1) states: 15.1(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. [65] A “child of the marriage” is defined in Section 2(1) of the Divorce Act as follows: 2.(1) "Child of the marriage" means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [66] Counsel for the mother referred the court to a number of cases dealing with the issue of whether an adult child is entitled, by reason of a disability, to receive child support from a parent, including Herrington v. Herrington (1981), 22 R.F.L. (2d) 40 (Ont. C.A.), Riddell v. Blackburn, [2003] S.J. No. 53, Hanson v. Hanson (2003), S.K.Q.B. 347, Cossette v. Cossette, (2003) CANLII 2086, Hill v. Davis, [2006] N.S.J. [67] These cases may be persuasive in their context, but the basis for the application for child support and a finding S. is a child of the marriage is that S. is pursuing a university education. Both parents agreed with S.’s attendance at university and supported his living in residence prior to their separation. S. has not yet completed his university education. Although it was possible for S. to conclude his degree program in the Summer of 2009 and graduate in the Fall of 2009, his mother seemed to support S.’s plan to continue with his studies until the Spring of 2010 when he would graduate as part of a larger class of graduates. [68] At this time, S. is not able to withdraw from his parents’ charge or to obtain the necessaries of life because he is a bonafide student pursuing an education that will assist him in his future employment endeavours. See Yaschuk v. Logan (1992), 110 N.S.R. (2d) 278 and Martell v. Haight (1994), 130 N.S.R. (2d) 318. In my opinion, S. is a child of the marriage as defined by the Divorce Act, supra. THE AMOUNT OF CHILD SUPPORT [69] S. receives a considerable amount of government funds which are used to pay for the cost of his university education, attendant care and personal living expenses. S.’s parents have advocated on his behalf to obtain this assistance which enables him to attend university. Despite this assistance, if S. is to complete his university studies, he requires a financial contribution from his parents towards the cost of attendant care on weekends. [70] The amount of child support determined by applying the Guidelines as if S. was under the age of majority is clearly inappropriate because S. is not residing with either parent, the unique nature of his needs and the contribution from government for his needs. [71] The amount of $10.00 per hour is a reasonable cost for attendant care on weekends since that is the amount paid for attendant care during the week. The father is able to provide some of that care personally and did so while the parents were residing together. The mother is not able to provide personal care. Although the father has suggested the Canada Study Grant funds are not available to pay for the cost of weekend attendant care, the parties used these funds to pay the cost of weekend attendant care in the past, and the father did not provide any evidence to indicate these funds can’t be used for this purpose. I accept that in S.’s case, these funds are available to assist with the cost of his attendant care on weekends, while pursuing his university degree. [72] The father did not know the amount of the tax savings he received from the transfer of tax credits or income deductions available to him due to S.’s circumstances because a third party prepared his tax returns. Although the father provided copies of his Notices of Assessment, he did not provide copies of his Income Tax Returns. The father has an income similar to the mother, but his income tax liability is considerably less. Neither the mother or S. is claiming the tuition and education tax credits. The tax savings receivable by the father attributable to S.’s circumstances should be available to pay the cost of S.’s attendant care on weekends. [73] The father is residing with a partner and sharing expenses. His reasonable monthly expenses should be considerably less than the mother’s monthly expenses, who is residing by herself in Halifax. [74] Therefore, I conclude the appropriate amount of child support payable by the mother, having regard to the condition, means, needs and other circumstances of S. and the financial ability of each parent to contribute to the support of S. is $480.00 every four (4) weeks, which is the estimated cost of attendant care every fourth (4th) weekend. In my opinion, the father is able to look after the costs of weekend attendant care for the other three (3) weekends through funds received from the Canada Study Grant, Income Tax savings, personal care and a financial contribution. [75] The amount of child support is payable until S. is no longer a child of the marriage, which the court anticipates will be in May, 2010. Either party may seek a review of S.’s status as a child of the marriage prior to that date. [76] The Order is effective February 1, 2009. The father is to provide the mother with receipts for payments made for attendant care on weekends between February 1, 2009 and May 31, 2009. The mother will reimburse him for those payments to the extent of her obligation pursuant to this decision. If the father assumed personal responsibility for attendant care on weekends, the amount of weekend attendant care owed by the mother from February 1, 2009 to May 31, 2009 is to be paid by the mother assuming responsibility for the cost of one (1) extra weekend every three (3) months after June 1, 2009, in addition to her ongoing obligation to pay for weekend care every fourth (4th) weekend, until the amount owing is paid. If the mother paid for attendant care on any weekend from February 1, 2009 to May 31, 2009, she is to receive credit for these payments. The mother may pay the cost of future weekend attendant care directly to those persons who provide that care. [77] The mother shall pay the father a lump sum in the amount of $5,000.00 for the cost of attendant care from February, 2007 until January, 2009, payable in the year after S. completes his university education. In arriving at this amount, I have considered: (1) The father did not provide receipts for payments he made for attendant care on weekends during this period of time. He may have provided the care personally; (2) The father was left with the responsibility for arranging attendant care on weekends without assistance or contribution from the mother; (3) The mother had an obligation to assist with the cost of weekend attendant care; (4) The father was late in providing disclosure of government funding sources and amounts until one (1) month before the hearing; (5) The mother was aware the father was seeking child support, which was claimed in his Petition for Divorce; (6) The mother paid for the cost of attendant care on at least four (4) occasions when S. visited her in Halifax; (7) The mother visits S. approximately once a month in Sydney and spends time with him for part of the weekend; (8) The availability of the Canada Study Grant and the father’s tax savings, because of S.’s circumstances, for payment of S.’s attendant care; (9) The mother’s payment of $2,500.00 for S.’s tuition costs in 2008. [78] The father’s claim for a contribution towards S.’s tuition costs in 2006/2007 and a monthly shortfall of other expenses are denied. The father has not established on a balance of probabilities that other funding was inadequate to meet these expenses. [79] While either party may request an opportunity to make submissions on costs, since success has been divided, my inclination is that each party be responsible for their own costs. ___________________________ J.