BGM v PGM, 2013 ABQB 67

Court of Queen ’ s Bench of Alberta Citation: BGM v PGM, 2013 ABQB 67 Date: 20130128 Docket: 4803 076768 Registry: Edmonton Between: BGM Plaintiff/Respondent - and - PGM Defendant/Applicant Editorial Notice: On behalf of the Government of Alberta identifying information and personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.D. Acton _______________________________________________________ I. Nature of the Matter

[ 1 ] On February 3, 2010, the Alberta Court of Appeal upheld an October 14, 2009 finding by Smith J that BM, born [...], 1987 with spinal bifida and hydrocephalus and suffering from other significant physical disabilities, remains “ a child of the marriage ” as defined by the Divorce Act as he is unable to withdraw from his parents ’ charge or to provide himself with the necessaries of life by reason of those disabilities. At the time of that ruling, as now, BM was residing in his mother ’ s home and was receiving benefits under the British Columbia Persons with Disabilities program. II.

Background [ 2 ] BGM, who now goes by her maiden name “ A, ” and Dr. PGM, were married in 1986. BM was born in January 1987. Ms. A and Dr. PGM separated in 1989, after which they entered into Minutes of Settlement, which provided that BM would live primarily with Ms. A and which set out the child support ($800.00 per month) and spousal support payable by Dr. PGM. The parties agreed a trust fund would be established for BM, with Ms. A and Dr. PGM to be joint trustees. Dr. PGM was to deposit $5,000.00 into the account, which was to be used for BM ’ s needs, in the joint discretion of the parties. Ms. A and Dr.

PGM divorced in 1991. The divorce judgment reflected the agreement of the parties as set out in their Minutes of Settlement. [ 3 ] Following a 1998 application by Ms. A to amend child support, Dr. PGM was ordered by Sanderman J to pay child support of $2,052.00 per month (including $303.00 per month in s 7 expenses). In addition, Dr. PGM was ordered to pay 50 percent of certain orthodontic work required by BM. He was also ordered to pay Ms. A $5,500.00 from the trust fund to be used by her to purchase a computer and printer for BM. [ 4 ] Ms. A was successful in opposing the counter-application brought by Dr.

PGM for custody of BM. Mr. Justice Sanderman stated at paras 24 and 25 of his decision that: “ Mr. PGM has many opportunities to have a positive influence on his son ’ s life... I accept the fact that Mr. PGM is truly interested in his son ’ s best interests. ” Despite these comments, Dr. PGM did not contact or see BM for well over a year after Sanderman J ’ s decision was released. [ 5 ] On June 12, 2009, Dr. PGM obtained an ex parte order staying the enforcement of child support payments pending his application to terminate support, although it appears from Ms.

A ’ s September 2009 affidavit that she continued to receive the support payment until July 2009 through Maintenance Enforcement. [ 6 ] On October 14, 2009, Smith J dismissed Dr. PGM ’ s application to end child support and lifted the stay. Dr. PGM appealed that order. The appeal was heard and dismissed on February 3, 2010. The Court of Appeal noted that Smith J had not had an application before her to reduce the quantum of child support and commented that any question of quantum must be dealt with by this Court on appropriate evidence. [ 7 ] Dr.

PGM applied to vary the quantum of support and to set the matter down for an oral hearing. A further stay of enforcement of the ongoing child support ordered by Sanderman J pending this hearing was granted by Veit J in May, 2010, although Dr. PGM was ordered to pay $10,000.00 into the trust account for BM. III. Evidence of the Parties and BM [ 8 ] Dr. PGM, age 52, testified he has had no contact with BM or his mother since October 2009. He has not phoned, emailed, sent a Christmas card or a birthday present since that time.

He points to the various court actions and the threat of litigation over all of these matters as his reasons for not doing so. However, I note that he is the only one who has brought any court applications since 1998. Under cross-examination, he admitted that he has provided no financial assistance to BM since the spring of 2009. [ 9 ] Dr. PGM advised that he has other children besides BM. It would appear from his evidence he has been generous towards the children from his second marriage both financially and in terms of his time and attention. Dr.

PGM testified that he pays $5,000.00 a month in child maintenance to his second wife M. He also paid the tuition for M to obtain her honours degree in psychology and political science and intends to support her while she takes a landscape design course at NAIT. He bought vehicles for their 19-year-old son C and

M ’ s daughter J from a previous marriage, whom he adopted. He put J through a business management program at NAIT and paid her rent. He testified she has decided to take a real estate course, for which he is paying. He financed their 16-year-old daughter E ’ s $4,000.00 trip to Greece and Turkey this past spring. Dr. PGM indicated he expects to continue to assist M financially even after E turns 18. [ 10 ] Dr. PGM spoke at length about his current common-law spouse, J2, who has three children.

He indicated he is impressed that she is not the kind of person to ask her former spouse or him for money, although he voluntarily helped her out when he learned she was having financial difficulties. She has a 20-year-old autistic son who is totally independent, according to Dr. PGM. Jade also has a 14- year-old son who has a part-time job at McDonald ’ s. Dr. PGM described him as “ a good kid ” and said he intends to treat him just as he has treated his other children. [ 11 ] Dr. PGM gave evidence about what he has done for BM over the years.

He testified that he paid for BM ’ s braces, bought him a computer and paid for his computer course at school. He said he paid $5,000.00 towards the start up of a donut business for BM, but acknowledged it was actually a loan to BM who has already paid back $2,000.00 of the loan. He advised he has set up trust funds for four of his children, BM included. BM ’ s trust fund currently has $21,000.00 in it. He indicated that as long as he signs off on the request, BM can have money out of the trust fund any time he wants some. [ 12 ] I note that Sanderman J, in para 34 of his September 1998 decision, directed Dr.

PGM to purchase the computer and pay for BM ’ s orthodontic work out of the monies in the trust fund established for BM ’ s benefit pursuant to the Minutes of Settlement. [ 13 ] In 2010, Veit J ordered Dr. PGM to pay $10,000.00 into BM ’ s trust fund within two weeks of the date of her order. If he failed to do so, the stay on enforcement of child support was to be lifted. [ 14 ] In my view, the directions of Sanderman and Veit JJ clearly demonstrate the deposits into and withdrawals from the trust fund for BM ’ s benefit were not entirely voluntary on Dr. PGM ’ s part. Under cross-examination, Dr.

PGM acknowledged he bought the computer for BM when BM was 10 years old. He testified he does not recall specifically what else he may have paid for. He also acknowledged he has not put any money into BM ’ s trust account since Veit J ordered that he deposit the $10,000.00 in May 2010. He further acknowledged he has not paid any child support for BM since 2009. [ 15 ] In concluding his direct examination, Dr. PGM was emphatic he does not want the Maintenance Enforcement Program (MEP) telling him what to do since he has not missed a payment in 25 years. This, however, is not entirely accurate.

He stopped making payments when Ms. A had a conflict with his then wife, M. Ms. A was forced to invoke the powers of the MEP before Dr. PGM reinstated the monthly payments. [ 16 ] Under cross-examination, Dr. PGM expressed his view that BM should be pursuing a work program, but admitted he has not spoken to any agencies in British Columbia about what programs might be available, explaining that is because of the Freedom of Information and Privacy Act . [ 17 ] Dr. PGM is a practising dentist in Camrose, Alberta.

He has had the following line 150 income for the years 2008 to 2011: Year Income 2008 411,659.35 2009 264,911.83 2010 305,438.62 2011 311,902.17 [ 18 ] Ms. A, also 52 years old, works full time as a mental health nurse in Osoyoos, British Columbia. For seventeen years prior to

undertaking this work, she did long term care assessments of persons with special needs for the Ministry of Health. She testified several of her clients were part of the Persons with Disabilities program. [ 19 ] Ms. A ’ s line 150 income for the past several years has been as follows: Year Amount 2008 $73,146.17 2009 $67,928.74 2010 $83,744.24 2011 $87,012.35 [ 20 ] Ms. A testified BM has been attending a Community College in Penticton, British Columbia since 2010. In the fall of that year he took history courses and in 2011 he took history and an English course. He passed three out of those four courses.

He is taking one course per term working towards an Associate of Arts Degree. [ 21 ] Ms. A indicated BM takes only one course per term as he suffers from fatigue, pain and other physical issues. He has used a wheelchair for 13 years now. His physical condition is degenerative. As a result, his care needs will increase as he grows older. Ultimately, he will need nursing care. Ms. A intends to keep him under her care as long as she is able to do so. [ 22 ] Ms. A testified BM has some memory issues as a result of the hydrocephalus.

She and BM have established a pattern of leaving notes and lists to remind BM to complete tasks. [ 23 ] BM needed surgery to put a rod in to straighten his back. He has suffered various physical problems as a side effect of the surgery, which in turn have caused him embarrassment, required that he have some assistance with his care and housekeeping, limited his socialization and created a barrier to his employment. [ 24 ] He suffers from contractions in his knees such that he is unable to lie flat when sleeping and does not enjoy a restful sleep. Nor does he have a comfortable sitting position.

He suffers pain in his back and shoulders. He uses his upper body to operate his wheelchair, which exacerbates the pain in his back and his shoulders. Massage therapy helps with this. Only a portion of the cost of message therapy is covered by his British Columbia Medical Services Plan. [ 25 ] Ms. A said BM generally is able to get himself up, showered, dressed and fed, although this takes an enormous amount of time and effort. [ 26 ] BM suffered serious depression and anxiety in 2008.

His mother testified these conditions have diminished since then as a result of concerted efforts to ensure that he gets out of the home every day, although there are occasions when he still experiences anxiety. [ 27 ] Ms. A expressed her belief BM would fail to thrive if he lived on his own. She believes he would not be motivated to take care of himself; he would not prepare meals and would not eat properly. She advised he needs assistance with his activities of daily living. Ms.

A has hired a housekeeper who comes in weekly to help with certain of the extra work necessary as a result of BM ’ s physical issues. [ 28 ] BM and his mother do many household tasks together, including making meals and doing the laundry. She does the more complicated banking, but encourages him to do as much as he is able to do on his own. The two of them sit down and discuss the household bills and decide who is going to pay for what. If BM has extra financial needs, for example to pay for his phone bill or groceries, Ms. A provides the necessary financial assistance.

[ 29 ] Ms. A indicated she tried to involve BM in activities, including having him manage an antique store she thought had promise. It did not turn out to be profitable. She said that BM has developed an interest in gardening and she has encouraged that interest. He takes vegetables he has grown and donuts he has made to the farmers ’ market from May to September, which provides him with pin money (approximately $30.00 a week). [ 30 ] Ms. A testified BM receives $906.00 every month from the British Columbia Ministry of Social Development under the Persons with Disabilities program.

He receives $167.00 quarterly as a GST rebate and $700.00 a year from the Ministry of Social Development for car insurance, which Ms. A says is not considered to be earned income. He also receives $2,000.00 in annual grants towards his schooling at the Penticton Community College. BM ’ sT1 income tax forms include his social assistance payments, the losses on his donut business and amounts for “ other income. ” It is not clear from the evidence before me whether the “ other income ” includes his truck insurance grant, although it appears to include at least a portion of his education grant. [ 31 ] Ms.

A prepared a list of what she believes is a best estimate of BM ’ s expenses. BM confirmed in his evidence that he examined it and assisted with preparing the list. They both testified they believe it is a fair and reasonable assessment of BM ’ s true monthly expenses.

They calculate that his monthly expenses amount to $2,654.81, including accommodation, utilities, groceries, cable and internet, drinking water, cleaning supplies, security, cell phone charges, toiletries, linens, dental care not covered by the Ministry, clothing, expenses for glasses above Ministry ’ s contribution, novels and entertainment, personal care assistance and housekeeping, repairs to home due to wheelchair damage, gas, truck insurance, tires for truck, maintenance for truck, BCAA, parking placard, bicycle repairs, exercise classes, electrical lift maintenance, massage costs above amount reimbursed, medical letters, filing income tax return, garden supplies, pet care, veterinarian costs, annual ski pass, ski equipment, ski accommodation.

The estimate of monthly expenses does not include tuition or other education-related costs but does include vehicle insurance. [ 32 ] Ms. A and BM live in the Osoyoos, British Columbia area, approximately two miles from downtown Osoyoos, in a 2,000 square foot, two bedroom bungalow. BM has the master bedroom and she uses the other bedroom. Under cross-examination, Ms. A explained the lower level of the house has a basement suite which has been developed and which she has attempted to rent out from time to time. Ms.

A testified she is not inclined to continue to rent it out because tenants have caused problems in the past and having tenants is stressful for BM. She had a security system installed in the home because of BM ’ s anxieties and fears. A panic button is attached to the system, which provides BM with security should he have a medical emergency. [ 33 ] According to Ms. A, she has lived in her present home for close to 20 years, having moved into it when BM was five years old. She had $66,264.00 in accessibility renovations done to the house from 2003 to 2005, after BM started to use a wheelchair.

She put in a lift from the garage to avoid the four feet of stairs BM otherwise would have to use in order to get from the garage up to the main floor of the house. She said he uses the lift daily. I accept the lift is an absolute necessity in the circumstances for BM ’ s wellness and mobility. [ 34 ] Ms. A explained that she and BM have to pay for drinking water because the water in their area is not potable. [ 35 ] Ms. A testified and BM confirmed he drives wherever he is going. Ms.

A explained that because the truck BM drives was purchased in 2004, it is now costing more in maintenance, particularly in terms of the brakes. She believes that a new vehicle would be safer for BM because of his disabilities. She wants to set up some kind of savings plan to provide for replacement of the current vehicle when it wears out to the point repairs are impractical. She said that the truck requires both winter and summer tires. [ 36 ] After BM ’ s previous cat Millie died, Ms. A obtained Patch, a new cat, for BM ’ s companionship. Dr.

PGM takes issue with BM having a pet cat, or contributing to the veterinary bills to pay for BM to have a companion animal. [ 37 ] Ms. A said that BM attends an exercise class with a trainer to help him maintain his greatest physical ability. Dr. PGM suggested BM could just go to the gym and train on his own. BM takes

part in a skiing program in Vernon, from which he derives great pleasure. Ms. A testified that BM smiles and laughs and has friends there. Since 2000, he has gone skiing about eight times each year in January and February. [ 38 ] Ms. A listed the vacations BM has taken: a couple of trips to Phoenix to visit her sister, a trip to Drumheller, a fishing trip

with friends and a week-end in Spokane. [ 39 ] Ms. A testified about various large expenses incurred on BM ’ s behalf every few years. She pays $2,200.00 extra for lighter titanium wheelchairs for BM approximately every five years. She incurred the cost to replace a hot tub they had installed because it provides BM with pain relief. She paid for the sit ski BM uses when he is skiing and made the payments on BM ’ s vehicle. Ms. A is not seeking contribution from Dr. PGM for any of these past expenses. [ 40 ] Ms. A ’ s evidence is that she contacted the MEP when Dr.

PGM stopped paying child support after she and his wife M got into an argument. She said that at a later date Dr. PGM phoned to say he did not want to pay anymore child support. She testified he threatened to contact the Ministry which runs the support program under which BM receives disability benefits and inform it she was receiving child support and BM was working in the antique store if she insisted on him continuing to pay child support. She said Dr. PGM carried through with this threat in 2009. Ms.

A testified the Ministry was aware she was receiving child support while they were paying BM disability benefits. When the Province undertook its initial assessment of BM ’ s situation, Ms. A told the case worker she was receiving $2,000.00 per month in maintenance for BM from his father. [ 41 ] After Dr. PGM reported BM to the Ministry in 2009 for alleged fraud, BM ’ s disability benefits were temporarily suspended while his case was reviewed. Ms. A was directed to start paying BM 10 percent of the sales from the antique store, which she said was about $25.00 per week.

She testified that any funds BM receives in excess of $200.00 per month will effect his monthly income and the medical benefits he receives through the Persons with Disabilities program. [ 42 ] During her evidence, she admitted that another mistake she made which interfered with the benefits BM was able to receive from the Ministry was to put money directly into his bank account for his use. Ms. A was advised by the case worker she should not do that as it was considered “ unearned income ” of BM ’ s.

She and BM ’ s case worker reviewed the medical benefits that BM was entitled to receive from British Columbia ’ s Ministry of Health and the forms she needed to fill out in order to allow BM to qualify for payment of certain items and benefits. She learned through her conversation with the case worker and the Ministry that if there was a trust established for BM, it had to be set up in a manner approved by the British Columbia government because there were specific policies that must not be violated or this, too, would disentitle BM to his provincial disability benefits. BM ’ s case worker helped Ms.

A to write up a special “ rental ” agreement with BM in order to maximize the disability benefits BM would receive. [ 43 ] Ms. A indicated that BM has to complete a financial eligibility review every two years with the British Columbia government. [ 44 ] BM also testified. He indicated he graduated from high school in 2005 and went to college in Kelowna hoping to earn a diploma in photography. He said he completed approximately 90 percent of his first year, but was unable to complete his second year. He went back to live in his mother ’ s house.

He found it extremely discouraging to have failed in something he was passionate about. While he was in Kelowna, his mother visited every couple of weeks to help him clean his apartment. [ 45 ] BM was quite candid about the fact he has had fatigue and stamina issues his whole life. He testified he needs ten hours of sleep if he is going to be able to get up rested in the morning. When he was asked about working full-time, he said anything is possible, although he admitted he does not believe he will ever be able to work full-time.

BM started working with a group called Open Door, first in Penticton and now in Osoyoos and Oliver. This organization helps young disabled persons find employment which is suitable for them and supportive of their limitations. [ 46 ] BM acknowledged his physical disabilities, including his right hand not working properly, the dislocation in his left hip, the scoliosis in his spine and other physical issues he has suffered as a complication of the surgery on his spine. He has pain most days in his lower back, shoulders and upper thighs.

It averages about a three on a ten point scale, and seven when it is really bad. The hot tub gives him relief for four to five hours. Tylenol provides him with relief for a couple of hours. [ 47 ] When BM was asked in the hearing before me about the physical problems caused by his condition and surgery, he broke down. This is hardly surprising. BM is an intelligent, attractive young man, limited only by his significant physical disabilities from being able to live an independent life away from his mother ’ s care. He is cognizant of all he is missing in life.

The severity of his multiple disabilities and the fact they are degenerative must be an enormous burden on his mind. However, he has interests and abilities,

and contributes as he can to his own support. [ 48 ] BM explained he conducts his donut business in the summer months, selling the donuts at the farmers ’ market, where he breaks even or can make up to $50.00 each weekend. Sometimes, he is able to make donuts on site for a special event. If he is successful at the special event, he might make $200.00 to $300.00. [ 49 ] BM ’ s line 150 income since 2008 has been as follows: Year Amount 2008 $9,852.73 2009 $9,999.14 2010 $12,238.54 2011 $12,735.67 [ 50 ] BM said for fun he plays video games, he goes skiing eight times a year and he goes cycling in the summers.

He testified he receives grant money from the Province for the courses he is currently taking at the Okanagan College in Penticton. This money is reflected on his tax returns under the column for “ other income. ” [ 51 ] BM advised he relies on his mother to cover his excess expenses, but that he does not like the fact he is not financially independent. [ 52 ] He testified one of his last contacts with his father was at the court hearing in 2009, when they talked about vacations they had taken.

He had gone on a vacation to Mexico in 2006 together with his father and his father ’ s side of the family and it had been a good time. The next time he spoke with his father was when he received an angry phone call from Dr. PGM, who told him they would have no further relationship if he supported his mother in court matters. Since then, there has been no contact between the two of them. IV. Expert Evidence [ 53 ] The Court qualified Dr. Kimberly McGuire as a practising psychologist, qualified to give opinion evidence in the area of psychological vocational assessments. She was retained by Dr.

PGM to undertake such an assessment of BM, which she did on April 15, 2011. She explained what she does in such an assessment is to look for strengths and weaknesses of what the person being assessed is capable of doing in terms of training on the job and what accommodations might be required to provide that person with the opportunity for employment from a psycho-vocational perspective. She was careful to advise she does not go into physical limitations as that is the role of a functional capacity assessment, which she did not conduct. Nor did she do a technical needs assessment. [ 54 ] Dr.

McGuire concluded from her assessment that BM has average reasoning abilities, auditory attention abilities, and expressive and receptive language abilities. He has variable abilities in terms of academic skills. His interests focus on “ hands on ” creative, art-related activities, with some interest in business and sales. Her assessment indicated that he has some degree of distress, with concerns relating to anxiety and chronic low mood. She observed that his mobility and physical limitations would be problems for his employment or participation in a classroom.

While she could not comment on BM ’ s ultimate capacity for full-time employment, she commented that supplementing his disability benefits with part-time earnings may be his most appropriate goal. V. Submissions of the Parties

[ 55 ] Dr. PGM indicated that he wants to provide for BM but hopes a method can be determined for him to do so without involving MEP. He supports the idea of a trust fund, but suggests that BM be required to ask him for monies to be paid out of the trust fund for his use. It is unclear what he is proposing in terms of the amounts to be deposited into that account and the frequency of those deposits. My impression was that he would prefer that the deposits and withdrawals be left on an as-needed basis, to be approved by him. [ 56 ] Dr. PGM takes the position Ms. A is holding BM back from becoming more independent.

Ms. A counters she is providing BM with assistance which the government will not and cannot provide. She submits BM would not be thriving if she were not stepping into the breach and offering her support. Staying with her allows him to live as free and full a life as he can. She says he would fail to thrive without that human connection, as he did in Kelowna. BM ’ s own testimony supports this position. [ 57 ] Ms. A points out Dr. PGM has never contacted her or BM to indicate what support he is prepared to give. Nor has he contacted BM since 2009 to see how his son is doing. Ms.

A recognizes BM ’ s abilities and talents, but says his physical disabilities are overwhelming. [ 58 ] Ms. A is not seeking reimbursement for any part of the major expenses she has incurred in supporting BM over the past three and one-half years. She asks the Court to order Dr. PGM to pay the equivalent of his proportionate share of the shortfall between the amount BM is receiving and his expenses. VI. Analysis A. The Law [ 59 ] The Alberta Court of Appeal has determined in this matter that BM is a child of the marriage. I do not have to revisit that issue. [ 60 ]

Section 1 of the Federal Child Support Guidelines sets out the objectives of mandatory support orders. In this case, s 1(

a) is important: 1. The objectives of these Guidelines are:

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation .... [Emphasis added.] [ 61 ] Section 3(2) of the Federal Child Support Guidelines governs the amount of support payable for a “ child of the marriage ” who is over the age of majority. However, s 3(2) refers to s 3(1), which applies to children under the age of majority. Therefore, s 3 must be read in its entirety.

Section 3 provides: 3(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(

b) the amount, if any, determined under

section 7.

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over,the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [62] In Manna v Manna, 2008 BCSC 1046, 56 RFL (6th) 372, Johnston J of the British Columbia Supreme Court dealt with achallenging situation similar to the present one. Mr. Manna, who was 65 years old, and Mrs. Manna, 61 years old, had separated in July1995. Their eldest son, born in 1972, had a form of Asperger's Syndrome and remained under Mrs.

Manna’s care. Johnston J noted atpara 9 that although the son was capable of working, his employment capacity did not rise much above minimum wage and heoccasionally required social assistance to supplement his income. The son lived with Mrs. Manna and was dependant on her for mealsand assistance with his finances. Mrs. Manna had been appointed committee of his person and estate by court order. Johnston Jconcluded at para 56 that the son was unable to withdraw from his parent’s charge by reason of his Asperger’s syndrome. Mr. Mannawas ordered to pay Mrs.

Manna the Guidelines amount of child support for the son while he continued to be in her charge. I take it by“Guidelines” amount he meant the s 3(2)(

a) amount. [63] In Lewi v Lewi (2006), (ON CA), 267 DLR (4th) 193, 80 OR (3d) 321, the Ontario Court of Appeal heldthe amount of support calculated by applying s 3(2)(

a) is “the presumptive amount.” At para 127, the majority took the position that s3(2)(a), by adopting the same approach for children over the age of majority age as that applied to minor children, “fosters predictability,consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.” The majorityemphasized (at para 129) that departing from the presumptive approach in s 3(2)(

a) is allowed under s 3(2)(b), but only in exceptionalsituations if the court considers the amount in s 3(2)(

a) to be inappropriate. B. Whether Applying s 3(2)(

a) is Appropriate [64] Under s 3(2)(

a) of the Federal Child Support Guidelines, Dr. PGM’s last known income of $311,902.00 would mandatemonthly payments to Ms.

A of $2,760.00 plus 78 percent of the s 7 expenses. [65] Sanderman J determined orthodontic costs, a computer with special features, and computer repairs were proper s 7 expenses.He also allowed the cost of BM’s swimming, skiing, golf and piano lessons as extraordinary expenses in 1998. [66] On the evidence before me, current and anticipated s 7 expenses would include, at a minimum, the upkeep costs for the lift,BM’s lightweight wheelchair, his medical and dental expenses in excess of what the government provides, his ski equipment and annualski pass, his cycling equipment and the cost of his personal trainer. [67] Consideration must be given, however, to whether the s 3(2)(

a) amount of child support is appropriate in the circumstances. [68] In the recent case of CLC v BTC, 2012 BCSC 736, the parties’ son was 18 years of age and mentally disabled. He wasreceiving benefits of about $940 a month under the Persons with Disabilities program. He lived in a basement suite in the mother's home,but did not live independently. He was in the process of completing a two year Kwantlen University work access program.

The fatherhad been paying court ordered child support of $981 per month but applied to terminate support in part on the ground that the son wasreceiving disability benefits. [69] At para 62, Verhoeven J considered whether the addition of the disability benefits rendered the s 3(2)(

a) approach todetermination of child support inappropriate. He concluded that the answer “turns on the relative financial significance of the PWD

benefits in the circumstances of this case. ” [ 70 ] Verhoeven J accepted the mother ’ s evidence that her son ’ s expenses had risen as a young adult and she had incurred significant housing and other costs for her son.

He held at para 75 that the addition of $600 per month in additional government assistance ($940 disability benefit less the loss of the $338.55 monthly child tax benefit for a disabled child when her son turned 18) was significant enough in the context of the son's support expenses and the finances of the parents that it ought to be taken into account and, therefore, it was inappropriate to apply s 3(2)(a). [ 71 ] In the present case, neither Ms. Adam nor Dr. PGM are asking that ongoing child support be determined by applying s 3(2) (a).

BM not only is receiving benefits under the Persons with Disabilities program, he is earning some of his own income (about $24 per month) and has received various grants. In 2010 and 2011, his line 150 income amounted to a little over $1,000 a month. In my view, it would be inappropriate in the circumstances to calculate child support based on s 3(2)(

a) of the Guidelines . Accordingly, BM ’ s means, needs and other circumstances and the financial ability of each of Ms. A and Dr. PGM to contribute to BM ’ s support must be considered in determining the amount of child support to be ordered under s 3(2)(b). B. BM ’ s Means, Needs and Circumstances [ 72 ] I accept that BM is contributing, as he can, to his own support.

As previously stated, he receives benefits under the Persons with Disabilities program, grants to assist with his education costs and truck insurance, and he earns a small amount from his donut business. [ 73 ] There has been some suggestion in articles and the case law that primary responsibility for the support of disabled adults who are unable to provide themselves with the necessaries of life rests with the state and that social assistance provides sufficient support.

While it is appropriate to take social assistance payments into consideration, I agree with the following comments of Veit J in JRB v CFB , 1999 ABQB 254 at para 21 , 240 AR 103 : A severely handicapped adult may require more than $823 per month to live.

A government program of assistance to severely handicapped adults although presumably providing for all basic needs - since some severely handicapped adults do not have independent means and some do not have extensive family support - cannot be sensitive enough to provide for legitimate extensions of basic needs. [ 74 ] Veit J was forced to conclude that the disability benefits in that case were adequate to provide the adult child of the marriage with full financial support as no evidence of any financial need beyond that amount was presented. [ 75 ] In Lougheed v Lougheed , 2007 BCCA 396 , 39 RFL (6th) 318 , the British Columbia Court of Appeal accepted that the term "necessaries of life" is to be applied to the specific applicant in view of that applicant's reasonable expectations.

The extent and provision of “ the necessaries ” are fact and case specific. The adult daughter in that case had mental disabilities and lived away from her parents in semi-independent assisted living.

The court indicated at para 24 that if the applicant is capable of employment or other limited participation in community life, the necessaries to sustain that person ’ s functioning will be greater than simply institutional residency. [ 76 ] As in Lougheed and unlike the situation in JRB , here there is evidence that BM ’ s needs exceed the amount he receives from the Persons with Disabilities program and other sources of income. I accept Ms.

A ’ s and BM ’ s evidence as to what his needs are. [ 77 ] They estimate that his accommodation and utilities cost $750.00 per month, in addition to $30.00 per month for cable and internet. I consider those costs reasonable given what BM was paying for rent and utilities when he was living on his own in Kelowna. [ 78 ] In my view, it is reasonable for BM to drive wherever he goes given that, with his disabilities and in view of where he and Ms. A live, it otherwise would be impractical if not impossible for him to get to his activities by himself.

I accept that being able to transport himself provides him with a measure of self-esteem. It allows him some independence and mobility. I consider it reasonable for him and Ms. A to include in his expense estimate the actual expenses associated with his use of the vehicle, including insurance, gas, tires and maintenance, the BCAA charge and the parking placard.

[ 79 ] In terms of the expense for BM ’ s trainer, I am of the view that it would be foolhardy for BM to attempt to exercise without the supervision of a trainer, given his disabilities. In addition, there is the social aspect of having a trainer to talk to while he is going through his exercise routine and someone to keep him on track with that routine. This may also help reduce the risk that BM will suffer from serious depression again and, undoubtedly, adds to his physical well-being at the same time. The same can be said for his cycling and skiing.

Bicycle repairs and the ski pass, accommodation costs while skiing and ski equipment are proper expenses. [ 80 ] Ms. A and BM have included in the expense estimate the annual repairs to the home due to wheelchair damage and electrical lift maintenance. Again, I consider these to be reasonable expenses. As noted by the Alberta Court of Appeal in Hojnik v Hojnik , 2010 ABCA 192 at para 19 , 81 RFL (6th) 288 : Support under

section 3 of the Guidelines is intended to help defray the cost of having to support children in a manner relative to the incomes of the parties. The support is intended to cover things such as the incremental cost of food, utilities, housing, transportation, and clothing which would be incurred by the custodial parent over and above his or her own costs. [ 81 ] BM receives a grant to cover the cost of his schooling at Okanagan College and all or at least a portion of it appears to be included as “ other income ” on his T1 form. The expense estimate prepared by Ms.

A and BM does not include tuition, books or other education related expenses. However, BM appears to have claimed the education credit on his tax return. [ 82 ] I accept that $2,655.00 is a reasonable estimate of BM ’ s monthly expenses. C. Calculating Arrears and On-Going Child Support [ 83 ] In June 2009, Dr. PGM obtained a stay on enforcement of Sanderman J ’ s child support order. I understand that he has not paid Ms. A any child support since that about that time, although he did deposit $10,000 into the trust fund for BM as ordered by Veit J.

No monies were paid out of the trust fund for BM ’ s benefit after the $10,000.00 deposit was made. [ 84 ] Dr. PGM now owes arrears of child support. Ms. A asks that for the period from Dr. PGM ’ s last support payment (which I understand to have been in June or July 2009) to the filing of his application to vary child support, he be ordered to pay arrears based on Sanderman J ’ s order. Although it was not until July 2010 that an order was made for the issue of quantum of ongoing child support to be determined by way of trial in this Court, Ms. A has known since August 2009 that Dr.

PGM was seeking to terminate child support. [ 85 ] I have concluded it is inappropriate in the circumstances to calculate child support under s 3(2)(

a) of the Guidelines , which was the basis for the order made by Sanderman J ’ s when BM was a minor. [ 86 ] Given this finding, how should arrears and on-going child support be calculated? [ 87 ] I am certainly not convinced in this case that Dr. PGM ’ s proposal to make unspecified deposits to BM ’ s trust fund on an as- needed basis is the best course of action. [ 88 ] In Lougheed v Lougheed , 2005 BCSC 1921 , the chambers judge calculated child support for the adult child of the marriage by considering the shortfall between the disabled adult ’ s income and expenses.

The Court of Appeal in that case (at para 11) appears to have accepted that approach. [ 89 ] In CLC , Verhoeven J considered how to take the adult child ’ s disability benefits into account in determining child support under s 3(2)(

b) of the Guidelines . The father argued in that case that the whole of the monthly benefit payment should be offset against

what otherwise would be his s 3(2)(

a) child support obligations, thereby relieving him of 90 percent of those obligations. Verhoeven J noted this contention ignored that the mother continued to provide substantial financial support for the adult child, who was residing with her. He expressed the view that if the benefits were to be taken into account to ease the child support burden of the parents, the relief should be shared by both. [ 90 ] Verhoeven J determined at paras 94-95 that the adult child ’ s monthly expenses were approximately $2,100, leaving a shortfall of $1,160 between that amount and the disability benefits received.

He held the shortfall should be financed by the parents in proportion to their incomes. [ 91 ] In my view, arrears and on-going child support in the present case should be based on Dr. PGM ’ s proportionate share of the shortfall between BM ’ s line 150 income and his expenses. [ 92 ] BM ’ s actual monthly expenses from August 2009 onwards have not been calculated. Counsel for Ms. A has suggested using the expense estimate, which I have accepted, and applying it to BM ’ s line 150 income for each year.

While not a precise measure of the shortfall, I am prepared to apply that method, using the actual line 150 incomes for 2009-2011 and the 2011 line 150 income for 2012. Based on its application, BM suffered the following monthly shortfalls between the amounts he was receiving and his expenses: Year Monthly Shortfall 2009 $1,822.00 2010 $1,635.00 2011 $1,594.00 2012 $1,594.00 [ 93 ] Based on the respective line 150 incomes of Ms. A and Dr. PGM for 2009-2011, and using their 2011 line 150 incomes for 2012 as well, Dr.

PGM ’ s share of that shortfall would be: Year Percentage His Share of Annual Amount 2009 80% $ 7,288.00 (5 months) 2010 78% $15,304.00 2011 78% $14,920.00 2012 78% $14,920.00 Total as at end of 2012 $52,432.00 [ 94 ] I therefore calculate the arrears owing by Dr. PGM up to the end of 2012 to be $52,432.00, less the $10,000.00 which he paid into the trust account for BM. That $10,000.00 is to be paid to Ms. A either directly or in trust for BM, as directed by her. The remainder of $42,432.00 in arrears is owing to Ms. A, to be paid as directed by her. [ 95 ] In terms of support for 2013, Dr.

PGM is to pay $1,243.00 (78% of $1,594.00) as arrears for January and thereafter $1,243.00 per month on the first of every month in 2013. Thereafter, child support is to be adjusted each January to reflect Dr. PGM ’ s proportionate share of the shortfall between BM ’ s line 150 income and his expenses for the previous year. The parties are to provide each other with the information set out in s 21 of the Guidelines by the end of August each year. In addition, Ms. A is to provide Dr.

PGM, by the same date, with the same information for BM and a list of BM ’ s expenses for the previous calendar year with supporting documentation.

[ 96 ] No expert evidence was presented which would assist the Court in determining the effect of this decision on BM ’ s receipt of the Persons with Disabilities benefits and other grants. However, in her September 8, 2009 affidavit, Ms. A deposed that any funds received by BM in excess of $200.00 per month will affect his monthly income and the medical benefits he receives through the Persons with Disabilities program.

I take her to have been referring to funds provided directly to BM. [ 97 ] The parties submitted information indicating that the British Columbia Employment and Assistance (BCEA) legislation provides that a person receiving disability assistance can have assets held in trust, under certain conditions, without those assets affecting eligibility for assistance.

The information suggests that discretionary trusts usually are not considered an asset under BCEA legislation, although there may be eligibility concerns if the beneficiary had control of the funds before they were placed in the trust and the amount contributed is more than $200,000.00. A non-discretionary trust is considered an asset but will be exempt as long as all capital contributed to the trust does not exceed $200,000.00. Disability assistance will not be reduced if payments from the trust are spent to cover certain disability-related items.

Payments of up to $8,000.00 can also be received from the trust each year to help the beneficiary live more independently. A single person with the Persons with Disabilities designation has an asset exemption of $5,000.00. Some income may also be exempt. [ 98 ] The parties also submitted a copy of an e-mail to counsel for Dr.

PGM from a Project Coordinator with the Policy and Research Division of the British Columbia Ministry of Social Development stating: “ [t]he money the client would receive from Child Maintenance is considered unearned income. ” The email also refers to a Family Maintenance Policy, dated November 20, 2008, indicating that family maintenance is considered unearned income and is not exempt except for a client who meets the criteria for the adult passthrough. [ 99 ] My intention in this decision is to grant arrears to compensate Ms. A for covering Dr.

PGM ’ s proportionate share of the shortfall between BM ’ s income and his expenses since August 2009 and to award on-going child support in an amount which, when combined with BM ’ s line 150 income, will meet his needs. As the structuring of the payment of arrears and on-going child support may have an effect on BM ’ s receipt of benefits, Ms. A is in the best position to determine, in consultation with the Ministry and counsel, how payment of the arrears and on-going child support should be structured so as to eliminate or reduce any negative effect those payments may have on BM ’ s receipt of benefits.

She may direct Dr. PGM how payment is to be made. I retain jurisdiction if the parties require further direction from me in this regard or respecting Maintenance Enforcement [ 100 ] Dr. PGM brought the application to vary child support. While child support has been varied, I did not agree with his proposal but rather agreed in large part with the request made by Ms. A. As a result, I award her costs of this matter. Heard on the 26 th , 27 th and 28 th days of November, 2012. Dated at the City of Edmonton, Alberta this 28 th day of January, 2013. L.D. Acton J.C.Q.B.A. Appearances: Mr. Greg J. Lintz

Tarrabain & Company for the Defendant/Applicant Ms. Lori J. Johnson Cochard Johnson for the Plaintiff/Respondent