LRP v BJP, 2012 ABQB 552

Court of Queen ’ s Bench of Alberta Citation: LRP v BJP, 2012 ABQB 552 Date: 20120911 Docket: 4801 110750 Registry: Calgary Between: LRP Plaintiff - and - BJP also known as BC Defendant Editorial Notice: On behalf of the Government of Alberta i dentifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an application by BJP (

C) for a determination of LRP's obligations with respect to s. 7 expenses for their two sons, now aged 18 and 20.

[ 2 ] Ms. C has put forward claims totalling $67,917.73 from the beginning of 2003 to the end of 2011. She also seeks further s. 7 expenses relating to anticipated expenses for the younger son attending Mount Royal University starting September, 2012. [ 3 ] She submits that the expenses should be borne 60 percent by Mr. P and 40 percent by herself. [ 4 ] Mr. P disputes the legitimacy of many of the claimed expenses, disputes that some of the claimed expenses have actually been incurred, and argues that Ms. C should be restricted to claims from mid-2009.

He argues that the appropriate split should be 50-50 with respect to legitimate s. 7 expenses from that time forward. [ 5 ] He further submits that with respect to ongoing s. 7 expenses relating to post-secondary education, Ms. C should be responsible for the expenses for their son attending Mount Royal University in Calgary, and he should be responsible for the expenses of their older son who has applied to attend Grant MacEwan University in Edmonton also starting this fall. Background [ 6 ] The parties separated in 2001 and were divorced in 2005.

From then until the late summer of 2010, both boys were in the primary care of Ms. C. Mr. P had access and paid s. 3 child support. [ 7 ] The first support order obliged Mr. P to pay $829.00 per month. Ms. C claimed no s. 7 expenses at that time, and none were ordered to be paid. [ 8 ] The parties were back in court in April, 2003 relating to enforcement of arrears. A further application was made on May 6, 2003 and Brooker J. readdressed child support and ordered Mr. P to pay $829.00 per month plus $11.00 per month for s. 7 expenses. [ 9 ] That order included a direction that Mr. P pay $560.00 per month to Ms.

C as spousal support, reviewable five months hence. [ 10 ] The parties returned to court in February, 2005 in connection with applications to determine the amount of arrears and obtain disclosure. [ 11 ] According to Mr. P, the substantive application in 2005 did not proceed as Ms. C did not make full disclosure. Mr. P's affidavit of November 24, 2008 deposes that Ms. C abandoned any s. 7 claims rather than proceed with disclosure in 2005. [ 12 ] In late 2008, Ms. C brought an application to recover Mr. P's share of certain s. 7 expenses, and to impute income to Mr. P. Ms.

C's materials in support of her application alleged that Mr. P was deliberately underemployed to avoid support obligations, and that his earning capacity was substantial. The agreement was facilitated by a dispute resolution officer. [ 13 ] At that time, she sought contribution for some $932.03 in dental expenses and $11,750 for orthodontic expenses. The expense claims were supported by receipts and account statements dated in 2008. [ 14 ] An order dated December 9, 2008 was granted by Hawco J. whereunder Mr.

P's guideline income was set for 2005 to 2007, and his 2008 income was imputed to be $37,500.00. [ 15 ] The imputation of income and resulting order was the result of negotiations between the parties. Ongoing child support from January 1, 2007 was set at $538.00 per month. Para. 5 states that "S. 7 expenses are adjourned."

[ 16 ] No further applications were made until the present application, filed in March, 2012. [ 17 ] Ms. C ’ s affidavit in support of this application repeats much of the unhappy history between the parties. Mr. P is current in support obligations for the younger son who continues to reside with Ms. C. [ 18 ] Mr. P's affidavit indicates that the older boy came to live with him in Edmonton in the late summer of 2010 and that the boy went back to school as he had not completed high school by his 18th birthday and while living with Ms.

C in Calgary. [ 19 ] He argues that there should be an offset against any amount he may be determined to owe Ms. C for s. 7 expenses and s. 3 payments for the older boy while he was living with Mr. P and going to school. [ 20 ] Disclosure for the purposes of this application is not to either party's satisfaction. Mr. P is now working for a corporation owned by him and his new partner. He states that it is better financially for him to provide services to his former employer through a corporation than to be employed.

He has produced financial records from his corporation suggesting that he will earn between $50,000.00 and $60,000.00 in 2012. [ 21 ] Ms. C acknowledges that she works part-time as part of a lifestyle choice. She wanted to stay home and be available for her sons to help with school work, and she has re-partnered. There are not financial pressures requiring her to work full time. Mr. P suggests that her new partner has significant income, and that should be a factor in contributions to s. 7 expenses, and the new partner has been in loco parentis to the boys for some time.

There has been no disclosure of the new partner's income. Issues [ 22 ] There are several issues to be determined on this application: 1. Guideline incomes for the parties; 2. Appropriate retroactive date for s. 7 expenses; 3. Determination of allowable s. 7 expenses; and 4. Post-secondary education expenses for the boys. 1. Guideline Incomes [ 23 ] Mr. P has not succeeded in returning to his 2004 income level of over $80,000.00.

His subsequent disclosure indicates that he earned significantly less in 2007 and 2008 than the income attributed to him (by agreement) for the purposes of the December, 2008 application. His income for 2010 was $53,539.20, and it was $50,995.14 for 2011. I am advised that the parties have been able to resolve outside these proceedings Mr. P's 2012 guideline income for s. 3 purposes. [ 24 ] Ms. C's income is determined through her tax returns. Her income from financial consulting work which she does has ranged between $9,000.00 to 26,000.00 between 2009 and 2011. Mr.

P suggests that she has undisclosed income (which she denies) and that she is capable of earning more. [ 25 ] Ms. C maintains that Mr. P is capable of earning more and points to his recent charge-out rate of $62 per hour.

[ 26 ] When asked during the hearing of this application what a "fair" split for s. 7 purposes would be in the circumstances, Ms. C suggested 60/40. Mr. P suggests 50/50. [ 27 ] There is no suggestion that either of the parties is unable to work for health reasons. Neither is required to devote time to child care as the two boys are now both over 18 with plans for post-secondary education. I cannot determine from the evidence before me which of the two parents has the greater earning capacity. Ms. C is apparently able to generate up to $26,000.00 in income on a part-time basis. Mr.

P's agreed imputed income for full-time work was $37,500.00 for 2007 and 2008, and he did not earn the imputed amounts in those years. He did earn $37,350.00 in 2009 apparently working full time. [ 28 ] As a result, I consider that both Mr. P and Ms. C have equal earning capacities. Neither faces any impediment to work, so I order that the s. 7 expenses be borne by them equally. 2. Appropriate Retroactive Date [ 29 ] Mr. P refers to D.B.S. v. S.R.G. , 2006 SCC 37 , on the issue of retroactivity. Apart from the $11.00 per month s. 7 payment ordered by Brooker J. in May, 2003, Mr.

P has made no contribution towards s. 7 expenses. Ms. C has provided a list of claimed expenses from 2003 to the end of 2011 totaling $67,917.73. After deducting Mr. P's payments of $737.00, she claims that she has paid $67,180.73 herself. [ 30 ] Mr. P claims that Ms. C abandoned any s. 7 claims in 2005 when she apparently declined to provide proper financial disclosure. After 2005, the first time she advanced a claim for additional s. 7 expenses was in October, 2008.

D.B.S. would generally allow her to go back three years from October, 2008 (barring circumstances that would suggest another date) although the materials from 2008 indicate that she was then seeking dental and orthodontic expenses. No mention is made in the materials of the other expenses she is now claiming (health plans, music lessons, childcare, school fees and transportation expenses, and sports expenses). [ 31 ] Ms. C explains her lack of pursuit of s. 7 expenses is because of Mr. P's spotty s. 3 payment record, and his threats to quit employment rather than pay s. 7 expenses. Mr.

P denies the threats, and indicates that he has always been willing to pay his share of proper s. 7 expenses, but only after Ms. C has provided proper disclosure and receipts for payment for the expenses claimed. [ 32 ] In the materials filed for this application as well as for the October, 2008 application, there is nothing to support claims going back more than three years from the filing date. The December 9, 2008 order of Hawco J. adjourns the s. 7 expense claims. Had Ms.

C pursued them at that time, it is likely that she would have been permitted to make claims going back to the fall of 2005, although it appears that in October, 2008 she was only looking to recover dental costs. [ 33 ] Mr. P argues that Ms. C should only be allowed to advance claims from mid-2009. He submits that the December, 2008 order should be given effect, and no variations made for a reasonable time thereafter. Mid-2009 would at the earliest be a reasonable time, having regard to disclosure obligations at the end of June each year. [ 34 ] Archibald v.

Archibald, 2007 ABQB 486 , indicates that generally, going back more than 3 years before formal notice requires the court to find blameworthy conduct on the payor's part. I do not think that the payor is required to search out s. 7 obligations. It is normally up to the recipient to incur them and then provide receipts along with a request for payment. [ 35 ] While Ms. C points to a lengthy history of arrears on Mr. P's part (although he is now current with s. 3 payments), she has not, before now, followed through on any s. 7 claims. On the other hand, Mr. P was on notice in October, 2008 that Ms.

C had incurred dental expenses and was incurring orthodontic expenses for the boys. Her application was adjourned, not dismissed. [ 36 ] In these circumstances, I consider it appropriate to look at the s. 7 expenses that were known at the time the application was adjourned by the December 9, 2008 court order and those incurred after that time.

[ 37 ] Mr. P can have been under no misunderstanding that Ms. C was incurring substantial s. 7 expenses by that time, and wanted him to contribute. [ 38 ] In making this finding, I recognize that Mr. P is gaining a significant benefit and will avoid responsibility for a significant amount of s. 7 expenses for which he would normally be obliged to contribute. Ms. C's failure to pursue such claims in a timely manner make it unfair to now go back to 2003. 3.

Allowable s. 7 expenses [ 39 ] I am satisfied that the dental expenses of $932.03 which were receipted and claimed in October, 2008 are proper s. 7 expenses and that Mr. P is responsible for his proportionate share. [ 40 ] The orthodontic expenses claimed at that time were actually incurred over the period 2008 to 2011 and total for both boys $12,760.00. Mr. P is responsible for his proportionate share of those expenses and for the purposes of this application essentially conceded as much. [ 41 ] For 2009, Ms.

C claims various amounts under the following heads: Season park pass and lift tickets for Sunshine Village $2,218.35 Soccer cleats 184.48 Rugby costs 502.00 Snowboard lessons 27.25 Grad fees 45.00 Science trip 15.00 Football expenses 659.00 Grad fees 40.00 School transit 1,228.00 Private tutor 1,000.00 Cell phones 945.56 Dental costs 562.19 Alberta Blue Cross 984.00 Snowboard gear 225.73 [ 42 ] Mr. P cites Krislock v. Krislock (infra) as authority that health care costs need to be properly broken down between the parent and the supported children, and that has not been done here.

However, in that case, McIntyre J. made an order under s. 6 of the Guidelines instead of dividing the costs. [ 43 ] I agree with the proposition in general terms, although I do not see that as a hard and fast rule. There needs to be evidence of the actual breakdown of premiums between the parent and the child(ren). It is good practice, and the absence of supporting documentation may in some circumstances be a reason to deny a claim, or adjourn adjudication of the claim for further evidence.

[ 44 ] Here, Ms. C acknowledged in argument that the payments claim included the premiums for herself as well as for the boys. She represented that the costs doubled for a "family plan" from the costs for a single person. It did not matter how many dependents were covered. [ 45 ] I recognize that her representation is not contained in the evidence. I could defer adjudication and permit her to file additional material. I could dismiss her claim because she has not brought forward proper evidence. I could leave quantification to MEP by simply ordering that Mr.

P pay the children's portion of the Blue Cross premiums. Or I could deal with it as best I can on the available information and provide some certainty to the parties. [ 46 ] In the circumstances here, I consider that I am in a position to assess the claim having regard to the lack of trust between the parties and hold that 50 percent of the premiums paid relate to the boys and are thus proper s. 7 expenses to which Mr. P should contribute his proportionate share. [ 47 ] Mr.

P objected to the private tutor costs, not on the basis that there was no tutoring, but instead that he was not satisfied that it had been paid. He put forward information that the tutor was a client of Ms. C's and he suspected that the tutor received services instead of payment. Ms. C provided an invoice from the tutor but no cancelled cheque or receipt. Again, I could adjourn this aspect of the claim, or dismiss it, or deal with it. Ms. C's affidavit in support of this application swears that the payments listed in the affidavit (including the tutor costs) were paid by her.

I am satisfied from this evidence that she has on a balance of probabilities paid the amount claimed. Tutoring (especially where the evidence supports the reasonableness of it, which is the case here) is generally a valid s. 7 expense. I accept it here, and direct that Mr. P pay his proportionate share of it. Other Amounts [ 48 ] S. 7 of the Federal Child Support Guidelines, SOR/97-175 , states: 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: (

a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Marginal note: Definition of "extraordinary expenses":

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term "extraordinary expenses" means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. Marginal note: Sharing of expense:

(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. [ 49 ] There is no evidence of special talents of either boy regarding skiing or snowboarding.

Claims are advanced for Sunshine Resort passes, snowboard lessons and snowboard gear, as well as for soccer expenses, rugby expenses and football expenses. [ 50 ] The activities to which the payor is required to contribute must be reasonable having regard to the resources available to pay for special and extraordinary expenses. Usually (apart from hardship), medical and dental expenses are reasonable and necessary, even orthodontic expenses where the major benefit from the work is cosmetic.

It is noteworthy that s. 7 uses a $100 annual threshold for medical expenses. [ 51 ] Some educational expenses are subsumed within s. 3 amounts, as are some recreational expenses, depending on the amount of s. 3 payments and the recipient spouse's income. [ 52 ] A parent is not expected to significantly reduce his standard of living to provide luxuries to his children. Here, Mr. P's income has been in the $50,000.00 range. I have found that Ms. C has at least a similar earning capacity, although she has only earned $20,000.00 to 25,000.00 per year.

She has not had to work full time as her new husband has obviously contributed to the cost of raising her sons. [ 53 ] I would not expect a family with pre-tax income to spend over $2,000 per year on season passes to an expensive ski resort. Nor would I expect a family with that level of income to provide their sons with cell phones.

[ 54 ] It is not unreasonable that teenage boys participate in community league soccer or school football and rugby. Those costs are reasonable, and I would not categorize them as luxuries. Mr. P is responsible for his proportionate share of the soccer, rugby and football expenses. I note that he objects to soccer cleats, relying on Krislock v. Krislock , 1997 CarswellSask 679 (Q.B.) , as authority that cleats are not s. 7 expenses. I agree with McIntyre J.'s assessment of sports equipment such as shoes, pads and other relatively low-cost items are not extraordinary expenses.

On the assumption that the claim of $184.48 includes registration and costs other than the cleats or shorts (as a pair of cleats is normally less than $50.00), I will allow $134.48 of the soccer expenses, holding that the cleats are not "extraordinary" and would be covered by the s. 3 payment. [ 55 ] Snowboard lessons and snowboard equipment, absent agreement between the parents or a compelling argument that they are necessary because of special talent, are in the luxury category and would not normally be a s. 7 expense.

They are disallowed here. [ 56 ] $85.00 in grad fees and $15.00 for a science trip are not special nor extraordinary, and they are disallowed. [ 57 ] School transit is within the special category. Mr. P has provided hearsay evidence from one of his sons to the effect that Ms. C has been reimbursed the transit costs. She denies it. I do not accept the hearsay from one of the sons as being sufficient to rebut Ms. C's affidavit evidence that the expenses were incurred. She denied in argument any reimbursement. I am not going to direct further evidence or prolong these proceedings.

I doubt that her sons have any accurate understanding of her financial position and what she has paid and what she has recovered from funding sources. I accept that the transportation expenses were incurred, not reimbursed, and amount to a proper s. 7 expense. Mr. P is responsible for his proportionate share. [ 58 ] For 2010, Ms. C advances claims for: School fees (welding course) $224.00 Rugby/football 170.00 Prescriptions 145.15 School transit 720.00 Cell phone 720.00 Alberta Blue Cross 984.00 [ 59 ] For the same reasons expressed above, Mr.

P should pay his proportionate share of half of the Alberta Blue Cross premiums and the other expenses but for the cell phone costs. The cell phone costs do not qualify as a s. 7 expense here. [ 60 ] For 2011, Ms. C advances claims for: Braces $12,760.00 Field trip 25.00 School transit 379.75 Welding shop fees 450.48 Grad photos 200.00 Cell phone 720.00 Alberta Blue Cross 955.80 Car insurance 1,300.00 [ 61 ] I have dealt with the braces with the orthodontic work above. The field trip is not a special nor extraordinary expense and

should be subsumed within the s. 3 support. [ 62 ] The school transit and welding shop fees are legitimate s. 7 expenses and should be shared. [ 63 ] The Grad photos are not a s. 7 expense. They are a luxury item in the context of this family. [ 64 ] As with the previous years' claims, the cell phone is not a legitimate s. 7 expense in this family. Half of the Alberta Blue Cross premium is a legitimate s. 7 expense, as held above. [ 65 ] Car insurance for a child is not, in the context of this family, a s. 7 expense.

While it is commendable that the younger boy has obtained a vehicle through his own resources, parents are generally not obliged to buy cars for their children or pay for their car insurance. Observations [ 66 ] There are certainly some families where Sunshine ski passes, snowboard equipment, cars and car insurance and cell phones are legitimate s. 7 expenses. Family income, lifestyle and individual interests and talents will determine whether a non-consenting parent may be required to contribute to such expenses.

The income of the parties here does not warrant what would be considered in this family to be luxuries to be paid for, absent agreement between the parties. [ 67 ] I am not persuaded that Ms. C's new husband's income is relevant to the determination of what qualifies for s. 7 expenses. The relationship between the new husband and the parties' sons is not before me, although it is obvious that he has been contributing to the boys' expenses, particularly in regard to the "luxury" items as Ms. C's income together with the s. 3 payments she has been receiving from Mr.

P are not sufficient to look after the boys in the manner they appear to have been cared for. Conclusion on S. 7 Expenses to Date [ 68 ] The $12,760.00 in orthodontic expenses incurred over 2008-2011 are legitimate s. 7 expenses. [ 69 ] For 2008, I have approved $932.03. [ 70 ] For 2009, I have approved $4,637.67. [ 71 ] For 2010, I have approved $1,984.75. [ 72 ] For 2011, I have approved $1,308.13. [ 73 ] These amounts total $21,622.58. Mr. P is obliged to reimburse Ms. C 50 percent of those amounts, namely $10,811.29 less the $11.00 per month paid from the beginning of 2008 to the end of 2011, being $528.00.

Thus, his obligation to the end of 2011 is $10,283.29. 4. Post-secondary expenses

[ 74 ] There is no mandatory formula for how post-secondary expenses are divided. It is a curious feature of family law that the children of separated parents are entitled to a contribution towards their post-secondary education (and in some cases payment by the parents of the whole cost) while the children of parents who are still together are at their parents' mercy regarding the funding of post-secondary education. [ 75 ] Some parents support post-secondary education and happily pay for it or contribute towards it.

Other parents are less supportive, or believe that children should find their own way after age 18. Many parents have financed their own post-secondary educations through part-time jobs, summer jobs and student loans. [ 76 ] The reality is that post-secondary educations are far more expensive for young adults these days than they were for their parents.

It is difficult for young people to pay for their own post-secondary educations unless they are able to get scholarships, student loans, work part time or full time during their studies, or a combination of these sources. [ 77 ] The leading case in Alberta regarding post-secondary education is Miller v. Joynt , 2007 ABCA 214 , which approves the "Farden factors" arising from Farden v. Farden , (1993), 48 R.S.L. (3d) (B.C.S.C. 60). It requires consideration of a number of factors, including the means of the parties, and the contribution of the child.

I have limited information concerning the Farden factors in the materials filed by the parties in this matter. [ 78 ] Nevertheless, in the absence of detailed information for both boys as to: 1. Full or part-time studies; 2. Eligibility for student loans or financial assistance; 3. Career plans for the boys and appropriateness of program of study; 4. Part time employment during school and summer breaks; and 6.

Academic performance to date; (Factor 5 relating to age being known and there being no issues raised as to alienation under factor 8.) [ 79 ] Here, I am advised that the younger son has a part-time job and intends to maintain that job while he goes to school. He wants to stay in residence. The program is an introductory program essentially upgrading his education to enable him to pursue a degree in some field. His program will apparently require him to purchase a new computer and software. Ms. C's estimate of the cost of his first year, being tuition, computer, books and residence, exceeds $12,000.00. [ 80 ] Mr.

P has not provided any costs for the older boy's intended program in Edmonton or his circumstances. He has just applied and has not yet been accepted. Ms. C doubts that the boy will be accepted to the program and doubts that the application is sincere. [ 81 ] No costs have as yet been incurred by either party in relation to the boys' post-secondary education. [ 82 ] Despite the absence of detailed information and full consideration of the Farden factors, I consider it appropriate to make some general rulings concerning anticipated post-secondary expenses.

[ 83 ] Mr. P refers to Krislock at paras. 15 and 16 where McIntyre J. stated: 15. When the Court is faced with a claim for a s. 7expense under one of these categories and the expense otherwise meets the criteria of the particular category, the claim is to be evaluated on the basis of the necessity of the expense (as defined) and the reasonableness of the expense (as defined) recognizing that whether to award an amount under s.7 is a matter of discretion, such discretion to be exercised based upon pertinent factors. 16. A claim for contribution to expenses as set forth ins. 7 is predicated upon the premise the party is seeking a contribution to actual expenses incurred.

Section 7 is not a basis for submitting a shopping list of estimated expenses for a variety of activities for the purposes of simply increasing the monthly child support payable. The party seeking contribution for s. 7 expenses should provide sufficient details to satisfy the Court the expense is being incurred, or will be incurred, and particulars of the actual expense involved.

The party seeking such contribution also has the burden of ensuring that the evidence or material submitted establishes that the expense meets the qualifying criteria applicable to the specific category of expense claimed as well as the qualifying criteria found in the opening words of s. 7(1). [ 84 ] Para. 16 was cited with approval by Hughes J. in J.S.S. v. W.J.S. , 2002 ABQB 819 . In my view, neither case stands for the proposition that s. 7 expenses can only be claimed after the fact and not prospectively.

The point from both cases is that the court must be satisfied that the expenses are going to be incurred, and that there be sufficient detail and certainty with respect to the expenses for the court to make a proper determination as to necessity and reasonableness. Rough estimates will generally not suffice. [ 85 ] Myke v. Myke , 2000 CarswellOnt 1945 (O.S.C.J.) , confirms that s. 7 expenses can be ordered to be paid prospectively and need not have been incurred already before an order can be made. There must be reasonable detail provided, however.

I agree with that approach. [ 86 ] In many cases, such as with expensive orthodontic work, school programs, sports or cultural activities, or post-secondary expenses, it is impractical to require that the costs have actually been incurred. Often, the sharing of costs needs to be pre-agreed or predetermined so that decisions as to enrollment can be made before the costs are actually incurred.

It is obviously best from the point of view of certainty that the costs have been incurred (or invoiced), but that is not a hard and fast rule. [ 87 ] Here, I have been provided little detail of the costs expected to be incurred by either boy should they actually commence post-secondary education this fall. [ 88 ] However, I am still able to deal with the matter in general terms, and make determinations with respect to the sharing of expenses as they arise. [ 89 ] Mr. P has limited income. Ms. C has less income.

Their combined incomes do not warrant them paying for the majority of post-secondary expenses for two children. [ 90 ] In my view, the costs of the post-secondary education should be borne 25 percent by each parent and 50 percent by each child. By "costs," I mean tuition, books and supplies. I do not include in that living expenses including transportation. Mr. P does not make enough income to pay for his younger son to stay in residence when he can live at home with Ms. C. He does not make enough to pay for his older son to live independently when he can live with Mr.

P in Edmonton. [ 91 ] As for living expenses, these should be contributed to by the parties by way of s. 3 payments. If both boys are staying with their parents while going to school, the s. 3 payments would be a wash with each parent providing one of the boys ’ room and board, and

other amounts in the parent's discretion. If both boys choose to live independently (or in residence), each parent should pay 50 percent of guideline s. 3 payments (based on Mr. P's guideline income for two children) to each boy, in addition to the parents sharing the tuition, books and supply costs in the manner stated above. [ 92 ] If one boy stays with a parent and the other lives independently while attending school, the parent with whom no one is residing shall pay s. 3 guideline (based on Mr.

P's income and for one child) support directly to the child. [ 93 ] If only one of the boys pursues post-secondary education, the non-custodial parent will pay the custodial parent s. 3 table support based on Mr. P's guideline income for one child. If that boy is living independently, both parents will pay that boy such amount directly. [ 94 ] The boys should, to the extent possible, be put on health benefit programs by both parents so that recovery for medical expenses is maximized.

To the extent that only one parent is able to pay for medical coverage, the other will pay half of the premium attributed to the boys to the paying parent. Any other s. 7 expenses will be as agreed between the parties, acting reasonably. [ 95 ] This order will put some pressure on the boys to contribute to the costs of their education and living expenses while at school.

So long as they are continuing in post-secondary education, and attending regularly and achieving grades allowing them to continue on with their studies, support should be paid for the full year until the year of graduation, when payments from the parents should in the ordinary course end at the completion of the final term. [ 96 ] I recognize that the post-secondary education costs may be a burden on the parties, although that is usually the case. Parents frequently make sacrifices so their children can pursue education.

Parents frequently dip into savings, or take on extra work to assist with post-secondary education costs, recognizing the importance of education for future independence and quality of life. It is again curious that these obligations can be forced on separated or divorced parents, but generally not on parents who remain together. But that is the reality of family law as opposed to family decisions.

Conclusion [ 97 ] I will retain jurisdiction to deal with the post-secondary expenses for this fall, which will depend on what actually happens regarding acceptance and attendance. [ 98 ] The parents are both entitled to receive regular reports from their sons as to courses, attendance and grades. They are also entitled to information as to the boys' finances, including earnings, loans, scholarships and the like so that they can be informed as to boys' circumstances and needs on an ongoing basis.

Satisfactory attendance and grades are a condition of the parental obligations to their sons regarding funding post-secondary education. [ 99 ] Mr. P should have 60 days from the date of this decision to make satisfactory arrangements with Ms. C or with the Maintenance Enforcement Program to retire the s. 7 arrears created by this decision. Heard at the City of Calgary, Alberta on the 28 th day of August, 2012. Dated at the City of Edmonton, Alberta this 5 th day of September, 2012.

Robert A. Graesser J.C.Q.B.A. Appearances: Arthur H. Wenngatz Caron & Partners LLP for the Plaintiff BC Appearing on her own behalf