SMW v WJB, 2013 ABQB 228

Court of Queen ’ s Bench of Alberta Citation: SMW v WJB, 2013 ABQB 228 Date: 20130412 Docket: 4810 13316 Registry: Red Deer Between: SMW Applicant - and - WJB Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] SMB ("S") is a child of the marriage of the Applicant Mother, SMW, and the Respondent Father, WJB. She was born July 24, 1992, and is presently 20 years of age. [ 2 ] WJB has been paying $551.00 per month for support for S, through the Maintenance Enforcement Program (“MEP”), for many years.

[ 3 ] In April of 2012, MEP advised WJB that due to the fact that S had graduated, they would no longer be enforcing support payments for her. [ 4 ] S’s mother, SMW, has brought an application for variation of an October 22, 2008 order for child support and for a declaration that S resumed her status as a “child of the marriage” when she began to attend the Alberta College of Art and Design (“ACAD”) in Calgary in September 2012. [ 5 ] S, as the result of a medical condition, is legally blind.

Despite that, she completed a two-year Fine Arts transfer program at Red Deer College (“RDC”) and has now been accepted and is attending the Bachelor of Fine Arts ("BFA") program at ACAD in Calgary. She intends to complete her BFA in two years and eventually become a teacher, ideally at the college level. [ 6 ] While at RDC, S lived for two years in a conjugal relationship with a young man (“SH”) who has recently become her fiancé. Now that she is going to school full-time in Calgary she is living in student housing without SH.

However, the relationship with SH is continuing. [ 7 ] During summers and while in Red Deer, S was able to work part-time. Since moving to Calgary to attend ACAD full-time, however, she has not been able to work due to the demands of the program and her vision issues. [ 8 ] In recent years the Respondent father has, for the most part, made no attempts to reestablish a relationship with his daughters. His only recent effort to establish a relationship with S seems to have come at or around the time he learned that she may no longer be eligible for support as a child of the marriage.

It is true that S ignored this effort, but she seems to suspect the effort was made only to collect sufficient evidence to support his desire to stop paying support. II. Issues [ 9 ] The applicant maintains that, in the circumstances described, S is a “child of the marriage” and is entitled to child support from WJB, even though she is over the age of 18. [ 10 ] As a result of S’s completion of the program at RDC and her living situation, WJB seeks a declaration that S is no longer a child of his marriage to SMW.

WJB states that, as S has entered a common law relationship akin to marriage she should no longer be considered to be a child of the marriage as defined in the Divorce Act , RSC 1985, c 3 (2nd Supp). [ 11 ] WJB has also taken the position that S has unilaterally rejected him, and accordingly, child support should no longer be paid. [ 12 ] Finally, WJB has expressed doubt that S's ambition to become a teacher is realistic. [ 13 ] The first issue to be determined is whether or not S remains a “child of the marriage” within the meaning of the Divorce Act . [ 14 ] The second issue is whether her disinterest in any kind of relationship with her father is such that she has disentitled herself to receive any support from him. [ 15 ] The third issue is whether her education endeavours are reasonably directed at achieving future economic independence.

[16] Finally, the applicant maintains that the legal blindness of S constitutes a disability, pursuant to which S cannot withdrawfrom her parents’ charge. III. Adult Children of a Marriage [17] The term "child of the marriage" is set out in s. 2 of the Divorce Act, as follows: "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; [18] This definition has been interpreted as applying to the adult offspring of divorcing couples so long as they remain "unable towithdraw from the charge" of one or both parents.

Acceptable reasons for being unable to withdraw from parental charge include illness,disability and "other causes." "Other causes" have been found to include being in school on a full-time basis, being under orunemployed, and even being unable to support oneself during the first years of, for example, an athletic career. [19] While children under the age of majority are presumed to need support from both parents, there is no such presumption withregard to adult children. The onus of proof that an adult child is a “child of the marriage” lies with the claiming parent.

Whether S is a Child of the Marriage [20] Adult children of divorce who deliberately withdraw from their parents' charge are in essence claiming their ownindependence at the cost of any chance at receiving support. The question for this Court is whether S, whose ability to work is limited byher vision problems and who has been enrolled in a full-time educational program, either of which could form the basis of an entitlementto support, has withdrawn from her parents' charge. [21] The Manitoba case of Chaban (Briault) v Chaban, (MB KB), 37 Man.

R. (2d) 170 (QB) arose when apayor father applied for a declaration that his daughter was no longer a child of the marriage. The daughter was 18 at the time and livedwith her boyfriend in a house owned, but not occupied, by her mother. The daughter was enrolled in a full-time program at the Universityof Manitoba. She worked part-time, had student loans and received financial support from her mother.

The boyfriend did not contributeto her education directly, but there was evidence to suggest that the shared living arrangement had financial benefits for the daughter.The Court found she had withdrawn from the charge of her parents and was no longer a "child of the marriage" as defined in the DivorceAct. [22] By contrast, in the Alberta case of Pollard v. Pollard, 1999 ABQB 976 , [1999] A.J. No. 1478, a mother applied forchild support for an adult child who was living with friends in Edmonton while attending University.

The mother lived in nearby St.Albert, but the daughter found the commute difficult, particularly with regard to evening classes. The Court conducted an extensivereview of the case law pertaining to support for adult children, and made the following points:

A) The onus of proof that an adult is still a "child of the marriage" rests on the party seeking support: Whitton v. Whitton (1989), (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.)

B) Whether an adult child is still a child of the marriage is a question of dependency, not age: Ciardullo v. Ciardullo (1995), (BC SC), 15 R.F.L. (4th) 121 (B.C. S.C.) at p. 125.

C) The phrase "under their charge" in s. 2 of the Divorce Act has been interpreted broadly to mean that a parent has assumed thesupport of the child: Tapson v. Tapson (1969), (ON CA), 2 R.F.L. 305 (Ont. C.A.)

D) Mere economic dependency is not enough to prove that an adult child is still a child of a marriage: Janzen v. Janzen (1980), (BC SC), 18 R.F.L. (2d) 152 (B.C. S.C.)

E) There is no requirement that an adult child of a marriage must live with the applicant parent if it is reasonable for that child tolive elsewhere while pursuing a higher education: Bates v. Bates (1995), 1995 ABCA 2 , 10 R.F.L. (4th) 261 (Alta. C.A.)

F) an adult child is expected to contribute towards her education to the fullest extent possible through bursaries, scholarships,student loans and part-time and summer employment: Bradley v. Zaba (1996), (SK KB), 140 Sask. R. 297 (Sask.Q.B.); Louise v. Scheuer (1995), (BC SC), 15 B.C.L.R. (3d) 270 (B.C. S.C.) [23] The Court also referred to the often-cited "Farden Factors," derived from a list of factors that British Columbia’s Master Joycefound relevant to the issue in Farden v. Farden (1993), (BC SC), 48 R.F.L. (3d) 60 (B.C.

Master) at 64]: (1) whether the child is, in fact, enrolled in a course of studies and whether it is a full-time or part time course of studies; (2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance; (3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to collegebecause there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated arelationship from the parent from whom support is sought.

Positions of the Parties [24] The Applicant father has taken the position that, by virtue of having been in a stable common-law relationship for the past fewyears, S has removed herself from the charge of her parents and is leading an adult independent lifestyle. The authority cited in supportof this proposition is Hrechka v Andries, 2003 MBQB 84, wherein the Court said: 26 Counsel for the respondent's argument is that Alison's common-law relationship is a well-established one, having gone on for somethree years. For some time her partner was employed.

It is only lately that her partner has become a full-time student. Counsel argues that

for some purposes a relationship may have already created a situation of potential support requirements between the two, which meansthat the child is no longer dependent upon the parents for the required support. When asked, counsel for the respondent knew of no caseswhere a child who had married could still remain a "child of the marriage" under the definition. She was of the view that in a stablecommon-law relationship, such as in this case, the dependency had moved, if there was any, from support by the parents to support bythe spouse. 27 I believe there is merit to this argument.

The evidence on the common-law relationship was not as complete as I would haveappreciated it, but the onus to satisfy me that the relationship is one which places the dependency upon the parent was that of thepetitioner.

The evidence that I have received - the length of time of the relationship, the sharing of expenses, the lack of evidence of anysubstantial requirement to receive funds from the petitioner - leads me to the conclusion that Alison has withdrawn from parental chargeand is able to obtain the necessaries of life. [25] There are a number of similarities between S’s situation and that of the daughter in Hrechka. Her relationship with “SH” isstable, having gone on for 3 years and recently culminated in an engagement.

SH owns the property in Red Deer where they live and,given the lack of evidence regarding the financial arrangements between S and SH, the court might reasonably infer that S did not haveto pay rent or contribute to a mortgage, either of which could be indicia that she has become, to a degree, dependent on her spouse ratherthan her parents. [26] However, starting in September of 2012 and, presumably, ending in May of 2014, S has spent the academic year living inCalgary while attending ACAD. Thus she is not currently living with either SH or her mother.

There is some evidence to show that in hercurrent situation, despite her past part-time work, student loans and scholarships, she remains financially dependent on her mother forboth living and educational costs. This situation is hardly unusual and the case law indicates that an adult child may cease being a childof her parents marriage and then, a few years later, re-acquire that status. That is the essence of Ms.

Willick’s position. [27] The Respondent father has also argued that even if she was otherwise eligible for support as an adult child of the marriage, S’sunilateral rejection of a relationship with her father is inconsistent with relying on his financial support: Law v Law (ON SC), [1986] O.J. No. 2513; Wahl v Wahl [2000] A.J. No. 29, 2000 ABQB 10, 257 A.R. 212. [28] The evidence of the parents was that although WJB was in contact with both S and her older sister for a time after the divorce,that time was not long and S claims she has not seen her father in 12 years.

As noted earlier, WJB made some recent efforts to contact S,but she has responded to these with hostility. Her evidence was that he was “stalking” her, perhaps due in part to her discovery that hehad obtained a copy of SH’s Certificate of Title for the house in Red Deer. [29] S was 4 years old when her parents divorced. She saw very little of her father after that, although he made regular supportpayments. WJB insists that he tried to sustain the relationship but was prevented by SMW.

Thus SMW may be the source of thebitterness and anger S displays toward her father, as evidenced in her letter to the court, appended to her mother’s affidavit. [30] Certainly S’s feelings toward her father are very negative, but they do not amount to a “unilateral termination of therelationship.” Sadly, there has been no relationship to terminate.

WJB’s submissions on this issue suggest that S had a “responsibility” totake steps to restore the relationship with her father, wholly separate from whatever transpired between her mother and father, andnotwithstanding the many years when WJB made no attempts to keep in contact with her. [31] Attempting to rekindle a relationship would have been the mature thing to do, but the fact is that neither party really tried andit cannot be ignored that WJB has been an adult at all times, whereas S has only recently gained that status. [32] Yet another argument introduced by WJB is that the onus in this matter is on SMW, the party seeking support for an adultchild, and SMW has failed to prove the three criteria the Court in Wahl, supra, applied to determine when a child’s post-secondaryeducation is reasonably necessary or whether that child is just going to school for lack of anything better to do.

Those criteria are: (

i) The adult child must have an aptitude that is reasonably likely to lead to academic success;

(ii) He or she must be pursuing the course of studies with diligence; (iii) There should be a reasonable likelihood that successful completion of the course of studies will lead to gainful and self-supporting employment. [ 33 ] WJB suggests there is no evidence of S’s aptitude for art or success in its study, and that it is not proved that there is any likelihood of her finding gainful future employment in the field. [ 34 ] This is not the case.

The materials submitted by SMW clearly show that S has and is continuing to do well in her chosen field of study, and that she has the support of her teachers who must be aware of her career aspirations. [ 35 ] Having regard to all the circumstances, it seems as though S may well have withdrawn herself from a financially dependent relationship with her parents in recent years, but that is not true as regards her current situation.

S is attending ACAD, and while she does so she is, in fact and in law, a child of her parent’s marriage. [ 36 ] In order to attend at, and do well in, her ACAD program S must live in Calgary, apart from both SH and her mother. It is not reasonable to demand that she work part-time during the school year, particularly as she is limited in her options for part-time work, in part by the demands of her studies and in part by the impairment of her vision. [ 37 ] It should be noted, however, that S is not rendered unable to support herself by virtue of her legal blindness.

While that legal blindness is a disability, it is not one that precludes S from living a full life with gainful employment. Were that the sole basis of this application, it would fail. [ 38 ] S has both living expenses that should warrant contribution from her parents and educational expenses which fall under s. 7 of the Divorce Act . However, there is no reason to believe that she will not be able to return to Red Deer in the summer break, to live with either her mother or SH, and be gainfully employed during those summer months.

Accordingly, support would not be warranted during that time, but should resume when S returns to school in the fall of 2013. [ 39 ] In

summary, I find that, since her commencement of studies at ACAD, S has been a child of the marriage. She will remain so during the months she is attending ACAD until graduation, but excepting out those months during which ACAD is in recess. The amount of child support payable by WJB shall continue at the rate previously established. S shall be responsible to pay her own tuition and book expenses, as she is capable of earning during the summer months; such that WJB shall not be called upon to pay

section 7 expenses. [ 40 ] The successful Applicant shall have costs from the Respondent in the amount of $500.00. Heard on the 6th day of February, 2013. Dated at the City of Red Deer, Alberta this 12th day of April, 2013.

R. J. Hall J.C.Q.B.A. Appearances: SMW Self-represented Barry M. King for the Respondent