Deveer v. Wolchyn, 2011 ABQB 288

Court of Queen ’ s Bench of Alberta Citation: Deveer v. Wolchyn, 2011 ABQB 288 Date: 20110502 Docket: 4803 154996 Registry: Edmonton Between: Brian Roy Deveer Respondent - and - Brenda Joan Wolchyn Applicant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B. Moen _______________________________________________________ I. Introduction

[ 1 ] The Applicant mother brought an Application in Family Law Special Chambers for a review of and retroactive variation of child support for the years 2003 to January 2009, and for child support to continue from February 2009 to May 2011. Further, the mother seeks a proportionate share of the child’s post secondary education expenses payable by the father pursuant to

section 7 of the Federal Child Support Guidelines SOR/2009-181. [ 2 ] The Respondent father argued that the Application could not be heard by this Court because it was brought after the child turned 21 when the child had ceased to be a child of the marriage. The father argues that the law requires an application for child support to be made prior to the date on which the child ceases to be a child of the marriage. [ 3 ] There is one child who is now 22 years old, his birth date being January [...], 1988. Therefore, the child turned 21 on January [...], 2009.

If one is to accept the father’s argument, then the application for retroactive child support must have been made by the mother before January [...], 2009. This application was commenced September 27, 2010. [ 4 ] The father’s argument that the mother’s application is made out of time is based on an agreement between the parties that was formalized in a Consent Divorce Judgment and Corollary Relief Order (“Corollary Relief Order”) granted by this Court on February 22, 1999.

In that Corollary Relief Order the father was to pay child support for the child so long as the child continued to attend an educational institution on a full-time basis.

That child support was to continue until the child reached the age of 21 years old. [ 5 ] It is the mother’s position that the child has remained a child of the marriage beyond his 21 st birthday and is, therefore, entitled to continued support pursuant to the Divorce Act, R.S.C. 1985 c. 3 (2 nd Supplement) as amended. [ 6 ] This case involves a question about whether the mother can now claim retroactive child support, that is, does the child remain a child of the marriage up to the date that the application was commenced? The answer to this question follows from the answer to the following two questions: 1.

In the absence of the Corollary Relief Order, has the child continued to be a child of the marriage as defined in the Divorce Act ? 2. Does the Corollary Relief Order have any impact on whether the child continued to be a child of the marriage? That is, by virtue of the Corollary Relief Order did the child cease to be a child of the marriage when he turned 21 years old? If the child did remain a child of the marriage, then the court must answer the question: 3. Is the child entitled to: (

a) retroactive support; and (

b) ongoing child support past the date on which he turned 21 years old? II. Discussion [ 7 ] The parties were divorced in February, 1999. At the time, the child was 11 years old. The Corollary Relief Order provided that the father would pay $800.00 a month for basic child support until the child turned 21 and that the mother and father would deal directly with each other from time to time to determine

section 7 expenses.

[ 8 ] This application, would therefore, result in a change to the corollary relief provisions of the 1999 Corollary Relief Order. [ 9 ] For a court to consider an application to change corollary relief, the Applicant must show that there has been a change in circumstances: s. 17(4) Divorce Act . The father says that there has been no change in circumstance considering the Corollary Relief Order.

The mother says there has been a change because the father’s income has changed substantially, the father has not complied with the requirement of the Corollary Relief Order to pay for the son’s transportation for time with the father, and the child is now in post- secondary education - he was 11 years old at the date of the Corollary Relief Order. [ 10 ] The first question, therefore, is “was the mother’s application for retroactive child support and ongoing support made on time?” A.

Was the mother’s Application made on time? [ 11 ] The father takes the position that the mother’s application for retroactive support was not made while the child was a child of the marriage as defined by the Divorce Act taking into consideration para. 4 of the Corollary Relief Order: 4. The Plaintiff shall pay to the Defendant the basic guideline amount of $800 per month pursuant to the Federal Child Support Guidelines payable on or before the first day of each and every month commencing July 1, 1998.

Such maintenance payment shall be made by the Plaintiff until the child of the marriage is eighteen (18) years of age, self-supporting and or living away from the Defendant’s home whichever shall occur first provided however that if the child of the marriage continues to attend an institution of education on a full-time basis and reside with the Defendant in the Defendant’s home, maintenance shall continue until the child attains the age of twenty-one (21) years or moves away from the Defendant’s home, whichever shall occur first. [ 12 ] The father says that the mother may only make an application for an increase in child support if that application is made while the child is still a child of the marriage.

The implication, of course, is that the mother’s application for retroactive and ongoing child support would be dismissed if the child in this case was no longer a child of the marriage at the time of the application. Even if the mother would otherwise have been entitled to an increase in support, she would be out of time to make the application. [ 13 ] It is the mother’s position that the Corollary Relief Order does not apply when determining whether or not the child continues to be a child of the marriage. [ 14 ] There are two questions that must be considered here: 1.

In the absence of the Corollary Relief Order, has the child continued to be a child of the marriage as defined in the Divorce Act ? 2. Does the Corollary Relief Order have any impact on whether the child continued to be a child of the marriage? That is, by virtue of the Corollary Relief Order did the child cease to be a child of the marriage when he turned 21 years old? [ 15 ] I turn here to a discussion of each of these questions. 1.

Has the child continued to be a child of the marriage? [ 16 ] The father, in his brief, concedes that the child here most likely continues to be a child of the marriage so long as I do not consider the impact of the Corollary Relief Order on the definition of “child of the marriage”.

[17] Here, I will briefly discuss whether the child in this case remains a child of the marriage ignoring for the moment theCorollary Relief Order.

a) Child of the Marriage [18] The Divorce Act, R.S.C. 1985 c. 3 (2nd supplement) as amended, sets out in

section 2 the definition of “child of the marriage: 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 fromtheir charge or to obtain the necessaries of life; [19] The age of majority is 18 years of age. [20] The second issue is what the “material time” is in the circumstances. The law is clear that the application must be made whilethe child is a “child of the marriage”. This is the “material time” referred to in the legislation: D.B.S. v.

S.R.G. 2006 SCC 37 ,2006 S.C.C. 37 at para. 88 and 89. [21] “Other cause” has been found to include continued pursuit of education by the child where the child is in full time attendanceat an educational institute: C.M.P. v. P.E.P. 1999 ABQB 976 at para. 41. [22] There are a number of factors as set out in Farden v. Farden, (B.C.S.C.) that the court has consideredwhen determining whether a child continues to be a child of the marriage and in attendance at a post secondary institution.

Those factorsinclude: · the age of the child; · whether the child is enrolled in a full-time or part-time course of studies; · whether the child has some reasonable or appropriate plan for his education; · whether the child has applied for student loans rather financial assistance; · whether the child is able to contribute to his own support through part-time employment; · whether the child is demonstrating success in his studies; · what plans the parents paid for the education of their children, if any during cohabitation; and · whether the child has unilaterally terminated a relationship from the parent for whom support is sought. [23] The court should consider each of these factors.

i) The child’s age [24] In this case, the child has recently turned 23. The child turned 21 on January 24, 2009.

ii) The child’s education [ 25 ] The child is at present attending full time at the University of Calgary pursuing a communications degree after he obtained a diploma from SAIT in Network Engineering. His intentions are to pursue a career in TV editing and production. He anticipates he will finish his communications degree in April 2011. iii) The child’s support [ 26 ] The child has resided with his mother in Calgary since the Corollary Relief Order and continues to reside with her.

The child has worked during the summer to earn some money to contribute to his expenses. [ 27 ] The child has attempted to obtain student loans but was not able to do so because he could not get disclosure of his father’s income which is to finance his education required before a student loan may be obtained. iv) Success in his studies [ 28 ] There is no issue between the parties that their son is doing well in his post-secondary education.

v) Parent’s plans for the child’s education [ 29 ] It is clear that the parents contemplated that their son would go to post secondary education if one reads the language in the Corollary Relief Order. Therefore, there is no issue with respect to this aspect of the analysis. vi) Estrangement by son from father [ 30 ] There is no issue here as the father and the son continue to communicate with each other.

b) Conclusion re Child of the Marriage [ 31 ] I conclude, taking into account all the factors as set out above, and not taking into account the Corollary Relief Order, that the child here remained and continues to remain a child of the marriage. [ 32 ] It now remains for me to consider whether the Corollary Relief Order has an impact on whether the child remained a child of the marriage beyond the date on which he turned 21. As set out above, the Corollary Relief Order addressed the issue of paying for the child’s post secondary education after he attained the age of 21 years. 2.

Does the Corollary Relief Order have any impact on whether the child continued to be a child of the marriage? [ 33 ] I have set out above para. 4 in the Corollary Relief Order. The words used are:

“... maintenance shall continue until the child attains the age of twenty-one (21) years or moves away from the Defendant’s home, whichever shall occur first.” [My emphasis] [ 34 ] I note that the language in para. 4 does not say that the child shall cease to be a child of the marriage when he turns 21. Rather, it refers to when maintenance shall cease. I will give a strict

interpretation of the Corollary Relief Order as the rights of the child concerning child support are at issue here. [ 35 ] Given that the Corollary Relief Order does not address when the child would cease to be a “child of the marriage” (it merely addresses when child support will cease) at the time that the mother made her application, the child was still a child of the marriage. 3. Conclusion [ 36 ] I conclude that the child continues to be a child of the marriage and was a child of the marriage when the mother made her application for retroactive child support and ongoing child support.

Because the child remained a child of the marriage, the mother is not out of time to file an application for retroactive child support. [ 37 ] With respect to the argument that the Corollary Relief Order changes the status of the child such that he no longer continued to be a child of the marriage, I find that is not what the Corollary Relief Order says. It merely addresses when child maintenance was to cease. [ 38 ] I must turn then to the third question: is the mother entitled to retroactive support and if so how far back?

Then I will discuss whether the child is entitled to ongoing support, once he reached 21 years old. B. Is the child entitled to retroactive support? [ 39 ] The divorce was granted in 1999. The mother suggests that the retroactive order should go back to 2003. [ 40 ] In 1999 this Court did not require the standard clause now found in corollary relief orders which requires the parties to exchange financial information in June of each year.

Therefore, this led to confusion about the requirement at law for a parent to provide child support based on current information. [ 41 ] Another common misconception is that the court loses jurisdiction over children and their support when an agreement is made between the parties. The court never loses jurisdiction in this regard although in considering whether there ought to be a retroactive reward, the court does take into account a number of factors, among them the terms of an agreement. [ 42 ] Children have a right to support from their parents commensurate with the income of those parents.

This right exists independent of statute law or court orders: D.B.S. at para. 54 . However, in determining if a child has a right to retroactive support the court must consider a number of factors including the statute law that applies. Both parents are responsible for ensuring that the children are receiving that appropriate amount of support. “... A court may award retroactive support where there has been a previous agreement between the parents.

Although such agreements should be given considerable weight, where circumstances have changed and the actual support obligations of the payor parent have not been met, the court may order a retroactive award ...”: D.B.S. at para. 74 . The court may also vary previous court orders in appropriate circumstances. [ 43 ] In determining if this case is an appropriate one in which to order retroactive support, I should consider a number of factors. First, I must consider why the mother has not made her application earlier.

[ 44 ] Counsel for the father advised me, and I accept, that the parties had exchanged financial information pursuant to mutual Notices to Disclose made in the summer of 2006. At that time the father provided his income for the years 2003 to 2005.

There was no explanation provided by the mother as to why she did not apply at the time for an increase in child support even though the salary of the father in that period of time was greater than the salary on which his child support had really been based. [ 45 ] The mother argues that the father’s income for the years 2003 to 2009 would have resulted in substantially more child support being paid through those years until the child turned 21.

On a review of the evidence it appears that the father would have paid more in the years 2003 to 2005, the years for which he had disclosed his income to the mother. [ 46 ] In considering whether to award child support retroactively, I must take into account not only the payor parent’s responsibility to pay child support but also the recipient’s conduct in not pursuing the payor parent when it is evident that the payor parent is not meeting his/her child support obligations.

In this case the mother knew about the income of the father up to the year 2005 and it was open to her at that time to make an application for increased child support. I find that the mother should have made an application for an adjustment in child support payable to the father when she received the financial information in 2006. Because she did not, she is not entitled to an increase at this time for that period. [ 47 ] The mother made her formal application which is before me in September, 2010.

The evidence also establishes that she attempted to obtain financial information by making a written request (e-mail) on March 17, 2009 to the father for financial information. She received no reply from him because, she said and I accept, that the father had not disclosed his address to her. [ 48 ] The court can award retroactive child support to the date of effective notice to the payor parent for an increase in child support and may award retroactive child support for three years back from that notice: D.B.S. at para.5, 118, 121, and 123.

Effective notice in this case was her e-mail request in March 2009 for disclosure. Therefore, this court will award retroactive adjusted child support from the beginning of 2006 until the child’s 21 st birthday, that is 31 January 2009. [ 49 ] Where there is blameworthy conduct on the part of the payor, in this case the father, the court may go back beyond the three years: D.B.S. at para. 124, 125 . [ 50 ] The evidence does not meet the standard of blameworthy conduct.

Nevertheless, I should make it clear that I find that the father well knew his obligations to pay child support commensurate with his income as determined from time to time. This is evident from the exchanges of Notices to Disclose by each party in the year 2006 and the exchange of financial information at that time. Therefore, the father cannot now defend an application for retroactive child support on the basis that he did not know he was to pay. [ 51 ] I also comment on the needs of the child today. The child has obtained student loans to assist and must pay back those loans.

It appears that the mother has curtailed her own needs to support her son in university. Therefore, the retroactive award will enable the son and the mother to cover expenditures already made for which the father should have contributed. [ 52 ] Finally, it is apparent that the amounts not paid by the father from the date of the Corollary Relief Order means that he has avoided paying child support in the amount required under the Child Support Guidelines since the date of that Order. [ 53 ] There is no mention in the Corollary Relief Order regarding why the parties were departing from the Child Support Guidelines.

In the Corollary Relief Order, the father’s income was found to be $134,933.00. However the child support amount he was to pay was $800.00 per month (which would be the guideline amount for an income of $91,000.00). That amount was below the requirement at the time child support considering the father’s income. At that time, the child support payable would have been about $1,070.00.

Evidence before me was that the reason the father was not paying the full amount of child support was because he had agreed to pay substantial amounts for airfare for the child’s visits to the father in Grande Prairie and the father was to make significant contributions to

section 7 expenses. The father acknowledges that since the Corollary Relief Order, he has purchased only one airline ticket for the child. There is no evidence as to whether the father in fact contributed to the other

section 7 expenses in the period up to 2005 when the parties exchanged financial information. The financial information for the father discloses that he has earned over $91,000.00 each year from 2003 to the present. [ 54 ] The evidence disclosed the father’s income for the years 2006 to and including 2009 which is as follows:

2006 $147,500.00 2007 $406,000.00 2008 $254,980.00 2009 $150,250.00 [ 55 ] These income amounts include dividends paid to him each year grossed up for tax. [ 56 ] The father argues that the incomes should not include the grossed up dividends he received from his corporation. The mother argues that the entire amounts should be considered as income. [ 57 ] I am including dividends in his income because it was paid out to him from his closely held corporation. The fact that dividends were paid to him implies that there was cash held in the corporation.

Usually when we calculate income from a closely held corporation we look at the financial records for the company to determine if there is cash available to be paid out to the owner of the company and we look at expenditures in the company to determine if there are benefits being received by the owner of the company that would normally be expenditures an individual on salary would have to spend from their own pocket. [ 58 ] In the case before me, I did not have the financial records. I only have the evidence of the father that he earned certain amounts in each year as dividends from the company.

Given that he is the owner, I can only infer that the funds paid out as dividends were liquid funds in the company available to be paid out to the father and therefore available to this court to use as income amounts for the father. [ 59 ] In calculating child support we use the total amount paid out to the father as his income for the purpose of that calculation.

I have set those amounts out above and direct that the father is to pay child support based on those incomes during the years 2006 to 2009 (January). [ 60 ] The evidence establishes that the father paid $800.00 per month which is to be deducted from the amounts payable on the arrears. Further, the evidence also demonstrates that the father paid additional amounts over and above the required child support in the Corollary Relief Order. The father has provided some money to the child since he commenced attending post-secondary school in 2006.

The mother acknowledges the total contribution of $18,325.00 by the father to the child for tuition and books. That amount is also to be deducted from the total amount of arrears. C. Is the child entitled to support since he turned 21? [ 61 ] Aside from an increase in the amount of support over the years 2003 to 2009, the mother seeks child support from February 2009 to at least September 2010 in the amount of $1312.00 per month. This is based on the child having remained in school until that time. [ 62 ] The Corollary Relief Order was a consent order.

The agreement of the parties with respect to ongoing child support is found in paragraph 4 as set out above. The child turned 21 on January 24, 2009, and according to the Order, child support ceased at that time. The mother argues that the child remained dependent after that time and that the Corollary Relief Order should be varied to require the father to pay support until the child is finished his education.

The mother is only claiming support up to September 2010 which is the date on which the child could get student loans. [ 63 ] The father argues that the agreement made in the Consent Corollary Relief Order governs.

[ 64 ] In order for the mother to demonstrate to the court that it should vary the term of the Corollary Relief Order concerning when child support would cease, the court must be satisfied that there has been a change which could not have been known at the time that the Corollary Relief Order was entered. In other words, was the change capable of being foreseen at the time of the agreement: Willick v Willick , [1994] 3. S.C.R. 670 at p. 23; Chalmers v. Simpson , [1994] B.C.J.

No. 993 at para. 6 citing the trial judge. [ 65 ] Here we are dealing with whether it could have been contemplated at the time of the Order that the child would continue in post secondary education after he reached 21 years old. The mother was asked this question in Questioning and said that she thought he would have a degree by the time he reached 21 and would not need support beyond that.

However, it is apparent that the parties discussed and contemplated an age beyond which they would not have an ongoing legal obligation to support their son and that was when he turned 21. [ 66 ] I find that the parties understood and could have foreseen that the child would stay in a post-secondary institution beyond the age of 21 but nevertheless agreed to cut off child support at his age of 21 years. Of course, this does not preclude either of the parties continuing to assist their son beyond that. It simply means there is no legal obligation on the part of either parent to do so.

Indeed, it is apparent that both parents have continued to support their child beyond when he turned 21. [ 67 ] Therefore, I am not awarding child support beyond when the child turned 21. D.

Section 7 expenses [ 68 ] In addition to child support, the mother seeks a contribution by the father to the child’s tuition, books and other additional expenses that is proportionate to the father’s income. Given that I have found that the father should pay child support, he is equally obligated to contribute to

section 7 expenses. However, those expenses must be proved by receipts. Given that I have found that the father is not required to pay child support commencing when the child turned 21 years old, the father is only responsible for

section 7 expenses from 2006 up to that time. [ 69 ] Further, the expenses, given the child is staying with the mother, will only include his tuition, his books, reasonable transportation expenses and any other similar expense directly related to his attendance at SAIT and at the University of Calgary. His clothes, food and lodging are covered in the child support payments. [ 70 ] The father has been contributing to the child directly. Those amounts have been taken into consideration above but, if the additional funds that the father has paid are more than sufficient to cover any shortfall on child support, the difference may be applied to his

section 7 obligations. [ 71 ] To calculate the father’s share of the

section 7 expenses, the mother must provide her income for each of the years, 2006 to 2009 inclusive. The order should reflect the father’s income as set out above and the mother’s incomes for each of those years. That will provide their proportionate shares. [ 72 ] Further, any amounts the son has earned in any year should be subtracted from the

section 7 expenses before the proportionate shares of the mother and father are calculated. However, the parties should allow a reasonable amount for extra-curricular activities on the part of the son. [ 73 ] If the parties cannot resolve the issues with respect to

section 7 expenses they may appear before me for assistance. III. Conclusion

[ 74 ] I grant the mother’s application for child support and

section 7 expenses for the child for the years 2006 to 2009 when the child turned 21 years old. [ 75 ] I dismiss the mother’s application for an adjustment of support in the years 2003 to 2005 and dismiss the application for child support from 2009 (when the child turned 21) to September 2010. [ 76 ] Given success is divided, each party will bear their own costs. Heard on the 18 th day of February, 2011. Dated at the City of Edmonton, Alberta this 29 th day of April, 2011. A.B. Moen J.C.Q.B.A. Appearances: Gwen May, Student-at-Law, Hamish J. D. Henderson for the Applicant Timothy Snyder for the Respondent