Date: 19980811 Docket: D106539 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: PIROUZEH RAZAVI PETITIONER AND: SAEED AAVANI RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BURNYEAT Counsel for the Petitioner: M.R. Boshier Counsel for the Respondent: M.A. Johnson Place and Date of Hearing: Vancouver, B.C. In Chambers August 7, 1998 [1] This is an application to assess the child support that should be payable by the respondent to support the infant child, Arya Aavani, born March 3, 1993. The parties were married in 1992 and divorced pursuant to an order made March 19, 1998. The primary issue in dealing with what child support should be ordered is whether or not monies available to the respondent from Canada Student Loans and from the British Columbia Student Assistance Program should be included when ascertaining the income of the respondent for Guideline purposes. BACKGROUND [2] Pursuant to an order made in the Provincial Court on July 30, 1996, the respondent was to pay child support of $50 per month. Up until January 1998, his income was $500 per month from Social Assistance and up to $100 per month whenever he has been able to find part-time work. On January, 1996, he entered Capilano College to take English as a second language and mathematics courses. The mathematics course was a prerequisite to taking an intensive course called the Accelerated Computer Systems Management Program which he entered on January 10, 1998. He describes this Program as a two year course which is concentrated into ten months and which requires at least 80 hours per week of studies and class attendance. [3] In order to undertake the program, the respondent entered into a loan agreement for a Canada Student Loan totaling $11,180, $6,708 which was available in January, 1998 and a further $4,472 available in June, 1998. $4,472 of that amount is a grant and $6,708 is a loan. After paying tuition and purchasing the necessary books and materials, the respondent estimates that he will have approximately $5,180 left for living expenses for the ten month period of the Program. Accordingly, his previous income from Social Assistance and odd jobs drops from approximately $600 per month to $518 per month. [4] The brochure describing the Program indicates that: "The majority of our graduates start in the $25,000 to $50,000 (averaging $30,000) per annum salary range. Graduates from this program are in high demand!" It will be necessary for the respondent to begin repaying the loan portion six months after he completes the Program. [5] The British Columbia Student Assistance Program provides students without dependent children $260 per week (combined Canada Student Loan and B.C. Student/Loan Grant) for each week of study and students with dependent children up to $385 per week of study. For the 43 week Program which is being undertaken by the respondent, that would produce $11,180 or $16,555. The respondent did not apply for the assistance available for those with dependent children. The respondent says that the regulations dealing with this Assistance Program require a minimum of two and a half days of custody of children before they become "dependent." The access available to the respondent is considerably less than two and a half days a week. While he would have been eligible to apply for a loan equivalent to the $50 a month he was ordered to pay to the petitioner, the respondent did not apply for an additional loan of $500 for the 10 months of the Program. IS THE STUDENT LOAN "INCOME" FOR GUIDELINE PURPOSES [6] Student loans are not "sources of revenue" in Revenue Canada's T-1 Form and, accordingly, pursuant to s.16 of the Guidelines, student loans are not included within a "spouse's annual income" for Guideline purposes. However, s.16 is subject to ss.17 through 20 of the Guidelines Section 19(1) allows the court to "impute such amount of income to a spouse as it considers appropriate in the circumstances." In this case, it is appropriate to impute income to the respondent. Formerly, he was receiving Social Assistance in the amount of $500 per month. That assistance was a source of revenue in the T-1 Form of Revenue Canada. From that assistance, he was paying $65 per month to the petitioner: $50 as ordered and $15 towards arrears. [7] That Social Assistance has been "converted" into the $11,180 he will be receiving under the Canada Student Loan and British Columbia Student Assistance Programs. While these amounts will not show within the total of "Total Income" in the T-1 General Form issued by Revenue Canada, these sums are nevertheless available to the respondent. I also mindful that he has failed to request the $50 per month that was available to him if he had indicated to the administrators of the program that there was an existing court order requiring him to pay that amount to the petitioner. The question is whether the full $11,180 should be imputed as his income to produce child support of $97 a month, whether $11,180 less tuition of $3,000 should be imputed as income to produce child support of $33 a month or whether only the amount available for living expenses should be imputed as income so that no child support would be payable. CASE AUTHORITIES [8] In Webb v. Webb [1998] B.C.J. (Q.L.) No. 1376, the court ordered child support for two children at $200 per month even though the 1997 income of the paying spouse was $4,000. An imputed income of $13,500 would be required for a monthly award of $200 for two children. It is apparent from the decision that Mr. Justice Cowan took into account the student loans available to the paying spouse when setting the amount to be paid. In McNamee-Annett v. McNamee-Annett (May 1, 1996 Oral Reasons for Judgment) Vancouver Registry DO99675, Master Donaldson ordered support of $250 a month for each of the two children based on $1,096 per month U.I.C. which was to run out several months later and on the basis of student loan eligibility totaling $12,000. In ordering a total of $500 per month, the court has either imputed income for support purposes at $34,700 or has imputed the same income in order that the s.7 extraordinary expense of daycare would be partially paid by the paying spouse. [9] In dealing with the question of an application for interim spousal maintenance, Master Horn in Johnson v. Johnson [1994] B.C.J. (Q.L.) No. 729, took into account the money available from a student loan in determining the monies available to the recipient spouse prior when, at the same time, setting the amount for interim spousal maintenance which was to be paid by the paying spouse. Similarly, see Brecknell v. Brecknell (1996), 23 R.F.L. (4th) 142. [10] In the context of opposing the request for child support on the basis of "undue hardship", Kozak J. in Makie v. Svar [1998] O.J. (Q.L.) No. 1247 (Ont.Ct.of Justice-Gen.Div.), took into account annual student loans being received when assessing whether or not there would be undue hardship if the amount for child support under the Guidelines was to be ordered. The court concluded that the two amounts should be combined when considering whether or not there was undue hardship. [11] It is clear that monies available from student loans and student grants have been included in the calculation of monies available to a spouse when child support was being set, when the court was determining whether the Guidelines amount for child support would create "undue hardship", and where spousal maintenance was being set. [12] It is appropriate to include such available funds even though some of those funds are a grant and some are repayable loans and even though not all of the funds will be available for living expenses. In Brecknell v. Brecknell, Master Powers subtracts the amount of tuition before establishing the funds which are available on a monthly basis for living expenses. However, that case is in the context of establishing for each spouse the net monies available for living expenses when setting the appropriate level of spousal support. Accordingly, while I accept the proposition that tuition should be subtracted for those purposes, it is not appropriate to subtract that amount when imputing income pursuant to s.19(1) of the Guidelines. [13] In setting the Guideline amounts, the legislators have established the amounts payable based on "economic studies of average spending on children in families at different income levels in Canada." (Per Note 5 in Schedule I of the Guidelines.) However, there is no attempt to establish what other "average" expenses are to be assumed to be subtracted from the gross income figure ordinarily produced when referring to the T-1 Form of Revenue Canada. Rather, it is the gross income which is used to determine "average spending on children" and there is no attempt to differentiate between gross income figures on the basis that differing gross incomes might produce differing availability of monies to then be spent on all other "average" expenses. Accordingly, in imputing income, I am satisfied that I should look only to the gross imputed income available to the respondent before referring to the Guidelines to establish the amount that should be paid for child support and I should ignore the fact that some of the gross imputed income will be used for tuition, books and materials. I can also ignore the fact that some of the monies available are loans and some are grants. In imputing income, I should take into account only the total amount of money available to the paying spouse and I can ignore the fact that some of the money will later be repayable. To do otherwise would ignore the fact that the gross amount is available and, when it is necessary to repay the loan portion, the amount required to be repaid on a monthly basis will be a modest amount in comparison to the then income of a party receiving such student loans and grants. [14] Accordingly, I impute the respondent's income for the year at $12,180. This sum reflects the $11,180 obtained by the respondent as well as two further months on Social Assistance. As there is no certainty that he will obtain employment, I have not imputed any additional income from such potential employment. I have imputed a further two months on Social Assistance on the assumption that employment will not be immediately available. The Guideline amount is therefore set at $99 a month. As the motions of the parties were originally to have been heard March 19, 1998, I am satisfied that it is appropriate in the circumstances that the payments of $99 per month commence March 15, 1998. [15] Although I am being asked to make a final order, it is clear that it is the hope of the respondent that he will become gainfully employed after his educational program is completed and that he can then expect annual income in the range of between $25,000 and $50,000. While it may be clear that obtaining subsequent employment will be a "change in circumstance" justifying a variation of the order under s.17(4) of the Divorce Act, so that there is no doubt in this regard, I propose to make this order an interim order pursuant to s.15.1(2) of the Divorce Act and adjourn generally the question of the appropriate amount to be set pursuant to s.15.1(1) of the Divorce Act. COSTS [16] The petitioner will be entitled to her costs on a Party and Party (Scale 3) basis payable forthwith after an assessment of the same before the Registrar. "G.D. Burnyeat, J." Mr. Justice Burnyeat