Sabrina Mathusz (applicant) v. John Carew (respondent)(1992020078; 2011 NLTD(F) 28)

Indexed As: Mathusz v. Carew

Newfoundland and Labrador Supreme CourtTrial Division (Family)

Butler, J.June 28, 2011.

Summary:A mother, who lived in Ontario, applied under the Interjurisdictional Support Orders Act

to retroactively vary child support for the parties' child who was currently attending college in Ontario. The father opposed the application, arguing that the child had been living independent of her mother and that her decision to estrange herself from him disentitled her from support.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), allowed the application. The child continued to be entitled to support.

Family Law - Topic 2347Maintenance of wives and children - Maintenance of children - Jurisdiction - A mother, who lived in Ontario, applied in Newfoundland and Labrador under the Interjurisdictional Support Orders (ISO) Act to retroactively vary child support for the parties' child who was currently attending college in Ontario - The father opposed the application, arguing that the child had been living independent of her mother - The child graduated in June 2009 but returned to school in September to repeat some courses to improve her chances of pursuing post-secondary education - She worked part-time - In May 2010, she quit to pursue employment at a stable - In September 2010, she started college - Section 32 of the Act set out the choice of law rules - Section 32(1) of the Act (NL) provided that "In determining the entitlement to receive or to continue to receive support for a child, the court shall first apply the law of the jurisdiction in which the child ordinarily resides, but where the child is not entitled to support under that law, the court shall apply the law of the province." - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that, in Ontario, s. 31(1) of the Family Law Act, limited child support to a person under the age of 18 or over the age of 18 and in full-time attendance at an educational institution - On a strict reading of this section, the child would not be entitled to support from June 2009 to September 2010 - Under the Newfoundland and Labrador Family Law Act, s. 37(7) established that the support obligation did not extend to "a child who has attained the age of majority unless that child is under the charge of his or her parent and is unable by reason of illness, disability, pursuit of reasonable education or other cause to withdraw from the parent's charge or to obtain the necessities of life." - Applying s. 32(1) of the ISO Act , the concluded that the child's entitlement had to be determined under the Newfoundland and Labrador Family Law Act - The child's circumstances continued to entitle her to child support - She remained under her mother's charge and was unable to withdraw due to her studies and having income insufficient to meet her basic needs - See paragraphs 5, 6 and 8 to 14.

Family Law - Topic 2351Maintenance of wives and children - Maintenance of children - Termination of obligation - Age - [See Family Law - Topic 2347].

Family Law - Topic 4045.5Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother sought vary child support - The father was also in receipt of non-taxable income from the Department of Veteran's Affairs associated with his service as a member of the Canadian Forces Reserves in Afghanistan - He characterized this income as akin to a personal injury settlement since it was paid as a result of a diagnosis of post-traumatic stress - As such, he argued that it should not be included in income for child support purposes - The Newfoundland and Labrador Supreme Court, Trial Division (Family), rejected the argument - The income in question was paid tax free as a disability pension - Unlike a personal injury award, the father did not receive this benefit on a lump sum basis - It was paid periodically - The court included the father's portion of the disability income, but not that portion paid to or for the benefit of his current spouse or their children, in the calculation of his income - See paragraphs 30 to 36.

Family Law - Topic 4045.11Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - A mother, who lived in Ontario, applied under the Interjurisdictional Support Orders Act to vary child support for the parties' child who was currently attending college in Ontario - The college was two days drive away from the mother's home - The child resided at the place of her employment (a stable) in the summer - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that, when a child studied and resided away from the homes of both parents at least eight months of each year, the payee was not entitled to receive the full table amount for the notional care the payee provided - However, there should be some recognition for the domicile the payee provided in the limited occasions the child returned home for visits and, in this case, the car that the mother permitted her to use from May to August - The preferred approach was to estimate the child's annual expenses in a fulsome manner, including the costs incurred by her mother in housing and/or feeding her between terms - The court determined the child's reasonable expenses, deducted her contribution from summer employment and concluded that the child's annual need was $13,700 - The father and mother were ordered to contribute 61% and 39% respectively to that need based on their incomes - See paragraphs 41 to 68.

Cases Noticed:Collins v. Collins (2010), 298 Nfld. & P.E.I.R. 275; 921 A.P.R. 275; 2010 NLTD(F) 15,

refd to. [para. 29].Wesemann v. Wesemann (1999), 13 B.C.T.C. 233 (S.C.), refd to. [para. 29].Marbach v. Marbach (2008), 459 A.R. 43; 2008 ABQB 516, refd to. [para. 33].Bridger v. Bridger, [2008] N.S.R.(2d) Uned. 61; 2008 NSSC 150, refd to. [para. 34].Cramm v. Mason-Cramm, [2009] N.S.R.(2d) Uned. 213; 2009 NSSC 339, refd to. [para.

35].Stratton v. Smith, [2005] Nfld. & P.E.I.R. Uned. 19; 2005 NLUFC 9, refd to. [para. 49].Houston v. Houston, [2007] N.S.R.(2d) Uned. 141; 2007 NSSC 277, refd to. [para. 51].Jahn-Cartwright v. Cartwright, [2010] O.T.C. Uned. 923; 2010 ONSC 923, refd to. [para.

53].Perfanick v. Panciera (2001), 160 Man.R.(2d) 287; 262 W.A.C. 287; 22 R.F.L.(5th) 178;

2001 MBCA 200, refd to. [para. 54].D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297;

2006 SCC 37, refd to. [para. 70].L.J.W. v. T.A.R. - see D.B.S. v. S.R.G.Henry v. Henry - see D.B.S. v. S.R.G.Hiemstra v. Hiemstra - see D.B.S. v. S.R.G.Sipos v. Sipos (2007), 223 O.A.C. 78; 2007 ONCA 293, refd to. [para. 78].

Statutes Noticed:Interjurisdictional Support Orders Act, S.N.L. 2002, c. I.-19.2, sect. 32(1) [para. 5].

Authors and Works Noticed:McLeod, James Gary, and Mamo, Alfred A., Annual Review of Family Law (2008), pp.

160 [para. 160]; 173 [para. 23].

Counsel:Sabrina Mathusz, applicant, self-represented;Kimberley R. Horwood, for the respondent.

This application was heard at St. John's, Newfoundland and Labrador, on April 29, 2011, before Butler, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following judgment on June 28, 2011.

Application allowed.

Editor: Rodney A. Jordan

Family Law - Topic 2351Maintenance of wives and children - Maintenance of children - Termination of obligation - Age - A mother, who lived in Ontario, applied in Newfoundland and Labrador under the Interjurisdictional Support Orders (ISO) Act to retroactively vary child support for the parties' child who was currently attending college in Ontario - The father opposed the application, arguing that the child had been living independent of her mother - The child graduated in June 2009 but returned to school in September to repeat some courses to improve her chances of pursuing post-secondary education - She worked part-time - In May 2010, she quit to pursue employment at a stable - In September 2010, she started college - Section 32 of the Act set of the choice of law rules - Section 32(1) of the Act (NL) provided that "In determining the entitlement to receive or to continue to receive

support for a child, the court shall first apply the law of the jurisdiction in which the child ordinarily resides, but where the child is not entitled to support under that law, the court shall apply the law of the province." - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that, in Ontario, s. 31(1) of the Family Law Act, limited child support to a person under the age of 18 or over the age of 18 and in full-time attendance at an educational institution - On a strict reading of this section, the child would not be entitled to support from June 2009 to September 2010 - Under the Newfoundland and Labrador Family Law Act, s. 37(7) established that the support obligation did not extend to "a child who has attained the age of majority unless that child is under the charge of his or her parent and is unable by reason of illness, disability, pursuit of reasonable education or other cause to withdraw from the parent's charge or to obtain the necessities of life." - Applying s. 32(1) of the ISO Act , the concluded that the child's entitlement had to be determined under the Newfoundland and Labrador Family Law Act - The child's circumstances continued to entitle her to child support - She remained under her mother's charge and was unable to withdraw due to her studies and having income insufficient to meet her basic needs - See paragraphs 5, 6 and 8 to 14.