LRP v BJP, 2013 ABQB 685

Court of Queen ’ s Bench of Alberta Citation: LRP v BJP, 2013 ABQB 685 Date: 20131204 Docket: 4801 110750 Registry: Calgary Between: LRP Plaintiff - and - BJP also known as BC Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _________________________________________ ______________ Introduction [ 1 ] This is a case which requires ongoing assistance from the court.

I gave a decision, LRP v BJP, 2012 ABQB 552 , dated September 5, 2012 dealing with Guideline incomes and child support for the two adult children of the marriage who were enrolled in the fall of 2012 to take post-secondary education programs. Ms. P (now Ms.

C) was claiming significant s 3 and s 7 arrears, and sought ongoing child support for the younger son, J, who was living with her and who had just completed Grade 12. [ 2 ] On the information before me, I determined Guideline income for Mr. P for the years 2010 and 2011 and set his ongoing income as $50,995 based on his disclosure and affidavits to the time of the special chambers application in August, 2012. Ms. C

maintained that Mr. P was either underemployed or income-spitting in an inappropriate manner in relation to his child support obligations. He represented through his filed materials and through counsel at the hearing that he expected his 2012 income to be between $50,000 and $60,000. [ 3 ] I accepted his evidence as to his 2011 income as being $50,995. His 2010 income had been $53,539.20. Ms. C has chosen to stay out of the workforce. I ruled that she had an earning capacity similar to that of Mr.

P and in that regard, their child support obligations would be the same to each other, and they would be responsible for 50 percent each of s 7 expenses. [ 4 ] Issues of s 7 arrears to the end of 2011 were decided.

Section 3 issues and arrears were not decided, as Mr. P claimed that he was entitled to an offset because Z had resided with him since the summer of 2010 after he had graduated from high school. According to his affidavit evidence, Z had from the summer of 2010 until the summer of 2012 been upgrading, unemployed or employed part-time. His intention was to return to school to pursue post-secondary education. According to Mr.

P, Z was during that period unable to withdraw from parental dependence. [ 5 ] I provided a formula for determining the ongoing child support issues, on the expectation that both Z and J would be pursuing post-secondary education starting in September, 2012. Having regard to the level of the parents’ incomes (Mr. P’s income being in the $50,000 range and having been significantly less than that for 2008 and 2009) and Ms.

C not working and having income attributed to her on the basis of earning capacity), I concluded that the boys should be responsible for 50 percent of their post-secondary expenses (but for s 3 support), and the parents would be responsible for 25 percent each. [ 6 ] I stated at para. 89 that “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.” [ 7 ] Neither party appealed my decision. Notwithstanding my decision, Ms. C has continued to make representations and file materials to the effect that Mr.

P’s income has been higher than was set by me in my decision. She continues to seek payments for J from Mr. P. [ 8 ] Apparently, Mr. P has refused to make payments to Ms. C following my decision relating to J’s maintenance and education expenses starting in the fall of 2012. He has taken the position that J was not enrolled in post-secondary education. Instead, from September, 2012 to April, 2013, he took some non-credit upgrading and pre-university courses so that he could be admitted to Mount Royal University in the fall of 2013 or the winter of 2014. J has continued to reside with Ms.

C and has had a part-time job during the intervening period from my decision until now. [ 9 ] Mr. P’s position is that J ceased to be a child of the marriage when he graduated from high school and has not regained “child of the marriage” status since then because he has never been enrolled in any credit programs and has not actually begun his post- secondary education. [ 10 ] Mr. P complains that Ms.

C has not made any payments to him on account of s 3 and s 7 expenses for Z’s post-secondary education starting in September, 2012 as Z was in full time attendance at Grant MacEwan University from September, 2012 until April, 2013. Z was apparently taking three full courses per term but spent additional time working on those courses. Mr. P says in his affidavit that Grant MacEwan treats three full courses as full time attendance. [ 11 ] Most recently, in written submissions dated August 30, 2013, Mr. P argues that Ms.

C owes s 3 child support to him for Z from July 1, 2010 because Z has been unable to withdraw from his parents’ care. He has since provided confirmation of enrolment by Z at Centre High in Edmonton between September, 2010 and June, 2011. His August 30 submissions maintain that Z continues in post- secondary education. The affidavit sworn by Z on August 25, 2013 and provided in support of his father’s position in this matter deposes that Z was planning on continuing in his post-secondary education in the fall of 2013. However, correspondence in mid- September, 2013 from Mr.

P’s lawyer advises that Z’s circumstances have changed. He did not return to university this fall, and was at that time seeking full time employment. Mr. P’s lawyer now acknowledges that Z is not a child of the marriage, although points out that Z’s plans are to return to post-secondary at some stage in the future. [ 12 ] Mr. P maintains that J is still not a child of the marriage because he is not in full-time attendance at a post-secondary institution. No s 3 or s 7 payments are due for him after June, 2012.

He also maintains that the older child of the marriage, Z, has been a full-time student at Grant MacEwan University since September, 2012 and has resided with him since July, 2010, such that Ms. C is responsible for support for Z as well as her share of his post-secondary expenses. [ 13 ] There is conflicting information as to what Z’s situation was before September, 2013. Ms. C says he was living independently and not attending school. Mr. P says Z was living with him throughout the periods in question. Z has sworn an affidavit supporting his father’s position in this matter.

Most recently, a letter from Centre High has been provided indicating that Z was enrolled between September, 2010 and June, 2011. Information provided in September, 2013 indicates that Z was enrolled in three courses each term. [ 14 ] In my view, that would qualify as full time attendance and I am thus satisfied that from June, 2010 until June, 2011, Z remained a child of the marriage. His evidence and that of his father’s is to the effect that he lived at home with his father. I have no basis to accept Ms.

C’s contention that Z was living with his girlfriend at the time. [ 15 ] From the information now provided, Z did not take any further courses or upgrading between June 30, 2011 and August 31, 2012. I cannot conclude from his father’s evidence that he was unemployed for part of that time, and planning to go to university in the fall of 2012, that he remained a child of the marriage during that time. [ 16 ] The information provided to me is to the effect that J took his programs from the fall of 2012 to the spring of 2013 to upgrade and gain admission to Mount Royal University.

He will do so again this fall, and has enrolled in (and been accepted to) Mount Royal in January, 2014 as a full-time student. [ 17 ] Z attended Grant MacEwan and took three courses in the fall term of 2012. He took four courses in the winter term of 2013.

Z received passing grades in six of the seven courses. There is no indication that Z took any further post-secondary education after April, 2013, and recent information confirms that he is not presently registered in or attending any programs. [ 18 ] By virtue of ordered disclosure, Mr. P now acknowledges an income of $130,129 for 2012 and $63,417 for 2011. I am unclear as to how that figure is arrived at and his income for 2011 remains in issue. [ 19 ] It is clear that I am not bound by a taxpayer’s line 150 income as claimed in his or her tax return.

Sections 18 and 19 of the Child Support Guidelines entitle me to consider deductions from income to determine if they are appropriate deductions for child support purposes. There is a difference between deductions for income tax purposes and deductions for child support purposes. [ 20 ] I considered these issues recently in TT v JT , 2012 ABQB 668 , and note that the Court of Appeal has settled the law in this area in Goett v Goett , 2013 ABCA 216 and Chekowski v Holland , 2013 ABCA 299 . [ 21 ] Ms. C maintains that Mr. P’s income for 2012 is higher than disclosed.

She has provided a pay record for $12,535.24 from Flint Integrated Services Inc. for the first third of 2012 showing both Mr. P and LP Management Inc. as the payee. It is unclear whether this amount went to Mr. P and LP Management (in which case his 2012 income may have been higher than the $130,129 disclosed) or whether it was included in the $130,129. The $130,129 is supported by T4s from entities other than Flint Integrated Services Inc., although a significant amount came from a Flint entity. No information has been provided for 2012 for LP Management, as Mr.

P swore in March 2013 that his 2012 income came from sources other than LP Management. [ 22 ] From Mr. P’s affidavit sworn March 27, 2013, for 2011 he acknowledges gross earnings of $19,705 as employment earnings from Flint, $32,500 as dividends from LP Management (having generated $40,000 of income to LP Management) and $14,110.64 net earnings from self-employment. These amounts total $66,315. That is in contrast to the $63,417 he claims in his August 30 brief. His self-employment earnings show a gross income of $41,810.37 and deductions of $27,699.73.

Of those deductions, $12,500 is claimed as subcontractor expenses. I assume that Mr. P’s current spouse is not the recipient of those expenses. That would be disingenuous if she had been the recipient. [ 23 ] Before deductions from self-employment income and through LP Management, Mr. P generated gross earnings of $101,515. There is no apparent reason why he should direct $40,000 of his earnings to LP Management. He is not a shareholder of that company, and there is no information suggesting that any work was done by LP Management.

For 2011, LP Management shows significant deductions, including large deductions for automobile, insurance, meals and entertainment, office expenses and supplies and telephone. Interest expenses are included as are what appear to be home office expenses. I have insufficient information to conclude whether any of these expenses legitimately relate to Mr. P. As a result, Mr. P should be credited with the full amount of the revenues generated by him as income to LP Management.

For 2011, $7,500 should thus be added to his income. [ 24 ] As for the deductions from his self-employed earnings, and on the assumption that nothing was paid to his new spouse, Exhibit C to his affidavit of March 27, 2013 shows expenses (not including capital cost allowance) of $11,591.56. Presumably the difference between that amount and the roughly $15,000 of expenses claimed is capital cost allowance on a vehicle. [ 25 ] It is not sufficient to simply list expenses and allege that they are legitimate for tax purposes.

Without better substantiation, I am prepared to impute 50% of the amount of the expenses claimed as personal benefits to Mr. P. They may be completely legitimate for tax purposes, but for the purposes of determining what his appropriate income is for child support purposes, the Guidelines entitle me to consider deductions from income. I do not think the deductions have been fully proven by Mr.

P and as a result, I conclude that half of those amounts should be brought back into his income. [ 26 ] Thus, of the $101,515 he generated for 2011, I conclude that his Guideline income should be calculated using his income from Flint of $19,705, the $40,000 he generated for LP Management, and the $41,810.37 generated by self-employment activities, minus the $12,500 for subcontractor expenses (on the assumption that his spouse was not the subcontractor) and ½ of the other expenses of $15,199.73 ($7,599.86). That amounts to $21,701.51 from self- employment.

The total for 2011 is thus $81,406.51. [ 27 ] The actual information provided by Mr. Puech in 2013 for 2011 and 2012 is in stark contrast to what was represented to me at the special chambers application in August, 2012: that Mr. P had actually earned less in 2011 than he had in 2010, and expected to earn only $50,000 to $60,000 in 2012. By the time of the application, 2011 had been over for nearly eight months, and 2012 was nearly two- thirds over. [ 28 ] It is my conclusion that Ms. C’s complaints about the accuracy of disclosure from Mr.

P, and the difficulties she has had in getting full and accurate disclosure are well-founded. [ 29 ] I have the strong sense that I was misled in August, 2012. It is incredible to think that by then Mr.

P would not know what he had earned in 2011, and that he would not know by then that his 2012 earnings would be significantly in excess of what was represented (unless he had only earned $45,000 to that time in 2012 and it came as a surprise that he was able to earn at least another $85,000 in the last four months of the year). [ 30 ] I conclude that I must approach his evidence very carefully, and I certainly find that he was at a minimum attempting to minimize his income to avoid child support obligations to Ms. C at the special chambers application in August, 2012.

The court’s ability to attribute income to him under Hunt v Smolis-Hunt , 2001 ABCA 229 is thus engaged if necessary.

Section 3 Issues Before September, 2012 [ 31 ] As my earlier decision did not resolve these matters, I will make some findings based on the subsequent disclosure. While I am suspicious of Mr. P’s income as disclosed even in 2013, there comes a time when the court needs to bring some finality to issues. To the end of 2012, I rule that Mr. P’s Guildeline incomes were:

2010 $53,539 2011 $81,406 2012 $130,129 [ 32 ] Ms. C’s actual income for the relevant years has been no greater than $20,000 although very few details of her earnings have been provided. [ 33 ] There is no issue that Z and J were both children of the marriage until June 30, 2010. J continued to be a child of the marriage until at least June 30, 2012. Mr. P is responsible to pay Ms. C s 3 Guideline support for two children from January 1, 2010 to June 30, 2010 on his 2010 income of $53,539. As previously ruled, s 7 expenses for both children will be shared equally. [ 34 ] From July 1 to December 31, 2010, Mr.

P is responsible to pay Ms. C s 3 Guideline support for one child based on his 2010 income of $53,539. As previously ruled, s 7 expenses for J will be shared equally. [ 35 ] For all of 2011, Mr. P is responsible to pay Ms. C s 3 Guideline support for one child based on his 2011 income of $81,406. I had previously ruled that s 7 expenses for J should be shared equally. I conclude that Mr. P’s Guideline income was misstated (at a minimum) at the application in August, 2012. From the evidence before me, I was then satisfied that Ms. C had an earning capacity of something similar to Mr.

P (around $50,000 per year), so I was satisfied that an equal division for s. 7 expenses was appropriate. [ 36 ] Mr. P should not be rewarded by late or poor disclosure, so the proportions for 2011 for s 7 expenses should be recalculated based on Ms. C having an income of $50,995 and Mr. P having $81,406. He thus should pay 61.48 percent of the 2011 s 7 expenses for J. [ 37 ] For 2012, Mr. P is responsible to pay Ms. C s 3 support for one child to June 30 based on his stated income of $130,129.

Section 7 expenses to August 31, 2012 should be paid based on Ms. C’s attributed income of $50,995 and Mr. P’s stated income of $130,129. His portion is 71.85 percent. [ 38 ] There is no information before me to suggest that Ms. C has an earning capacity of anywhere close to $130,129, and my attribution of $50,995 to her was generous in Mr. P’s favour based on my earlier impressions of his earning capacity. Had I known that Mr. P’s income had actually been so high, my formula would have been very different. [ 39 ] Now that Mr.

P’s actual income is known (if indeed all sources have been properly disclosed), it is appropriate to revisit the formula for the fall of 2012. I had been persuaded that because of Mr. P’s relatively low earning capacity (based on what he represented he had earned in 2011 and what he expected to earn in 2012, his children could not expect that he (and Ms.

C) bear the majority of post- secondary expenses. On incomes of roughly $50,000 each, parents are unlikely to be able to contribute significant amounts for post- secondary education barring significant hardship on their parts. [ 40 ] However, Mr. P generated gross income of over $100,000 in 2011 and over $130,000 in 2012. Those incomes warrant the formula I considered appropriate based on a family income of $100,000.

It is more appropriate in these circumstances that the parents bear 2/3 of the expenses, leaving the children to come up with the remaining 1/3 through part time employment and loans. [ 41 ] I thus conclude that the parents’ share of post-secondary expenses should be 2/3 of those expenses and not 50 percent as previously directed. The provision of accurate information as to revenues is a material change in circumstances and warrants revision to the formula previously set. [ 42 ] I do not revisit the income I attributed to Ms.

C as I conclude that she is able to earn and contribute at least that amount to the family needs. Her choice to remain less than fully employed should not place a greater burden on the children or Mr. P than is reasonable. Attributing that level of income to her, and requiring her to make contributions based on that level of income ($50,995) is appropriate in these circumstances. Situation for J from July 1, 2012 to December 31, 2012 [ 43 ] J had just graduated from high school. While he was working part-time, he was planning to upgrade or attend Mount Royal University starting in September.

The information provided indicates that he was unable to register in a credit program at Mount Royal and instead took pre-admission courses and tutoring. Because of documented learning disabilities, special computer programs were purchased to facilitate his learning. [ 44 ] During this two-month period, J continued to reside with his mother. I am satisfied that he remained a child of the marriage during that period. He was clearly not in a position then to withdraw from his parents’ care by reason of his plans for post-secondary education. He was not employed full-time, and at a minimum, he (and Ms.

C) are entitled to this period as a “grace period” pursuant to the cases cited herein. [ 45 ] I remain satisfied that J remained a child of the marriage until the end of 2012, as the sworn evidence from his mother satisfies me that he was making significant efforts to upgrade by way of taking courses and extensive tutoring. It is also very significant that J has long been diagnosed with a learning disability, which makes his entry into post-secondary education more difficult, requiring a lot more effort than for someone who does not have similar challenges. [ 46 ] Mr.

P is accordingly required to pay s. 3 child support based on his $130,197 income for July through December, 2012. He is also responsible to reimburse Ms. C for 71.85 percent of the parents’ 2/3 percent share of J’s s 7 expenses during that period.

Situation For Z from June 1, 2010 to August 31, 2012 [47] Mr. P has sworn that Z remained in his care for that period, and was unable to withdraw from dependency on his parents. Assuch, Mr. P seeks s 3 payments for Z from Ms. C based on the income I attributed to her of $50,995. [48] Mr. P cites two cases in support of his argument that Z remained a child of the marriage throughout the period from when hebegan living with Mr. P until he started Grant MacEwan in the fall of 2012.

It is curious that he argues that Z was and remained a child ofthe marriage even though he was not attending any post-secondary institution during that period, but denies that J was a child of themarriage after graduating from high school because he did not immediately attend post-secondary.

He appears to have a double standardregarding his sons. [49] In Cole v Cole, (NS FC), 1995 CarswellNS 79, [1995] NSJ 362 (NSFC), the Nova Scotia Family courtconsidered the situation of two adult children attending post-secondary education. [50] Daley FCJ ruled that the older child should be considered a child of the marriage for up to two months after graduation, to actas a grace period to obtain employment or make plans for his own future. Until that time, he remained a child of the marriage, includingduring between-term periods after he had completed one program and entered another.

The younger child required a period of upgradingbut did so and attended university from January until March when he was suspended because of some serious criminal charges againsthim. He had the possibility of attending a different university in the fall (the case was argued in May, so his future for post-secondaryeducation was uncertain).

Judge Daley considered that child’s difficulties, and ruled that he remained a child of the marriage,inferentially leaving matters up in the air if the child did not go to university that fall. [51] The case is very useful, as it reviews cases from other provinces on the subject. Judge Daley’s conclusions are found at paras12 and 13: 12 These decisions represent the

interpretation of what constitutes other cause and a child's inability to provide him/herself with thenecessaries of life. 1. Whether or not a child over the age of 16 years is a child of the marriage by reason of other cause or unable to obtain thenecessaries of life, is to be decided on all the facts of the particular case with due regard to the conduct of the parties and the conditions,means, need and other circumstances of the parents and the child at the material time. The "material time" is the time of the hearing. 2.

A child does not cease to be a child of the marriage on its 16th birthday unless the child is able to provide him/herself with thenecessaries of life independent of its parents but it may become a child of the marriage at a later date and age when the child is found tobe unable to provide itself with the necessaries of life. 3. Once a child over 16 years is found not to be a child of the marriage, the child is not automatically denied a child of the marriagestatus at some future time. 4.

Under "their charge" is to be read broadly to mean that the parent has assumed the care and maintenance of the child in theparent's premises. 5. The words "other cause" are not restricted in their meaning by reference to the genus of illness and disability which precede them. 6. Provincial statutes defining the age of majority do not apply to the definition of a child of the marriage and a person who is anadult under such provincial legislation may still be a child of the marriage under the Divorce Act. 7.

An inability to withdraw from the charge of the parents must be a bona fide inability. 13 Age, education, pursuit of education, inexperience, lack of job training and local employment opportunities are factors addressedin these decisions. These decisions are not determinative of the state of the law in these areas in Canada. 8. Age by itself is not a deciding factor. 9. Education for the purpose of completing preparation or equipping the child for life in the future, is considered grounds forfinding the child is a child of the marriage. 10.

Regular school attendance in keeping with the local school policy for registration, attendance and credit purposes are required foreducation to be a factor. 11. The child must live at home and be supported by the parent. Prior behaviour as student, including disciplinary, are generally not afactor for denial of status as a child of the marriage provided the child makes sincere and committed effort to continue education withinthe limits of the child's capacity and the educational pursuits are reasonable and attainable.

A child's best effort is sufficient to meet thetest of an inability to remove oneself from the charge of the parents. 12. Intention to pursue education in the future must be demonstrated by supporting evidence demonstrating the intention. Mere wordsthat intend to go to school in the Fall, for example, are not sufficient in themselves. 13.

Part-time employment during vacation, leaving school to earn money to return to school or provide for oneself until schoolattendance is possible or during the school year have not been grounds for denying the child status when the child returns to school andcomplies with the other factors.

14. The availability of government financial resources, e.g., student loans, does not constitute grounds to deny the child status. 15. Leaving school and returning to school at some later date, enables the child to be a child of the marriage. 16.

Under the heading of "other cause", local economic deficiencies and unemployment, lack of job training and experience may leadto a conditional child of the marriage status, subject to a grace period to find employment and review of status. [52] Tughan v Tughan, , [2003] O.T.C. 595 (OSC) is also authority for the point that adult children can remainchildren of the marriage if there are valid reasons why they have not been able to become self-sufficient. There, the parties’ daughtergraduated from high school, but was missing three courses for university entrance.

She planned to upgrade, but the courses were notavailable until the next term. While she waited for the term, she found part-time employment. She was held to remain a child of themarriage during that interval. It is noteworthy that her part-time income was in evidence, as was the fact that she had learning disabilities. [53] That case talks about a “grace period” between high school and post-secondary education, and refers to Ontario casessupporting that principle. [54] In certain circumstances, I consider a grace period to be appropriate both before post-secondary education starts and after itends.

Some children cannot gain entrance immediately after graduation and require upgrading. Some children cannot find jobsimmediately on graduation from their post-secondary education and require some time to become self-sufficient. [55] Post-secondary education is to be encouraged, as is completion of secondary education even if it does not require full-timeattendance. Some children require longer to “find” themselves than do others, and there should be no arbitrary cut-off once a childgraduates from high school.

Cut-off is the starting point, but each child’s circumstances and prospects must be examined and analyzed. [56] Parents do not have to pay for a “gap year” of travel, but if a child requires a reasonable period of time to upgrade to gain post-secondary admission, the child may well continue to be a child of the marriage during that period. Even after the upgrading is complete,there may also be a gap between completion of the necessary upgrading and commencement of the post-secondary program.

Programsmay not be available until the following term, which leaves the child in some sort of limbo until the program begins. That may be Julyand August for some children, May to September for others, or September to January for others. [57] While the child may be working during that interval, if the child is living with one of the parents, you would expect the childto be responsible for many of his or her own expenses as well as being required to save for education expenses. Depending on their levelsof income, they may still be children of the marriage.

If there is any lengthy gap, children should be working and their incomes must bedisclosed so that the court can determine what level of support (if any) is required, and what they are able to pay for and save forthemselves. Most children should contribute in some way to their educations and not expect their parents to bear the full cost. [58] Here, the evidence supports Mr. P’s and Z’s allegations that Z remained a child of the marriage from July 1, 2010 to June 30,2011. He was enrolled in Centre High during that period, and took a reasonable load of courses.

I have no specific information aboutwhat Z was actually doing between July, 2011 and the end of August, 2012. [59] I conclude that Z remained a child of the marriage until June 30, 2011 when he finished his upgrading at Centre High. [60] As with J, I find that he is entitled to a grace period pending his entry into post-secondary education. He was clearly makingplans for further education in the summer of 2010, so he remained a child of the marriage until September, 2010 when he started CenterHigh.

Cases also talk about a grace period following graduation or completion of education, and it is appropriate for Z to have a twomonth grace period following finishing Center High to make career choices and find employment. A fourteen month period as arguedfor by Mr. P is not reasonable. [61] It is appropriate for Mr. P to receive child support from Ms. C based on her notional income of $50,995 from July 1, 2010until August 31, 2011. She is also responsible to reimburse Mr.

P for 50 percent of Z’s s 7 expenses for the period July 1, 2010 toDecember 31, 2010 and 38.52 percent of Z’s s 7 expenses for January 1 to August 31, 2011. [62] Nothing is due to Mr. P for Z for the period September 1, 2011 to August 31, 2012. [63] There is no basis for me to conclude that he remained a child of the marriage after that time until he actually began takingcourses at Grant MacEwan in the fall of 2012. He was certainly a child of the marriage from September, 2012 until the end of April,2013 at the earliest. [64] Ms.

C is responsible for payment of s 3 child support for Z for September 1, 2012 to December 31, 2012 at her attributedincome of $50,995. She is responsible to reimburse Mr. P for her 28.15% of the parents’ 2/3 share of Z’s s 7 expenses for that period. January 1 to April 30, 2013 [65] Both boys were actively engaged in post-secondary education activities during this period. While J was not enrolled in credit-granting programs at a post-secondary institution, the information satisfies me that he continued the same educational activitiesdescribed above in the fall term throughout the spring term.

Both boys remained children of the marriage during that period, and theparents are responsible to pay s 3 support to the other based on their 2012 incomes described above.

Section 7 expenses are to be basedon the same proportions as above for the parents’ 2/3 share: 71.85 percent as to Mr. P and 28.15 percent as to Ms. C.

April 30, 2013 to Present J’s Circumstances [ 66 ] Nothing has changed for J. He continues to work on preparation for post-secondary education. He has tutoring, works part- time, and will be enrolled at Mount Royal University starting in January, 2014. He has been a child of the marriage throughout this period, and will remain so. Mr. P is responsible to pay s 3 child support based on his 2012 income of $130,197 and s 7 support of 71.85 percent of the parents’ 2/3 share of J’s s 7 expenses. Z’s Circumstances [ 67 ] Z ceased post-secondary education (at least for the time being) effective April 30, 2013.

I have no information as to Z’s current circumstances. [ 68 ] In contrast, Ms. C has provided considerable details as to J’s activities, his upgrading, his employment, and she has provided receipts for his registration in January, 2014 as well as the many other expenses incurred readying J for Mount Royal College. It is significant that he has some learning disabilities. There is no information suggesting Z has any such problems. [ 69 ] Both boys are entitled to equal and fair treatment.

In J’s case, I am satisfied that his learning disabilities warrant extensive preparation for entry into post-secondary education. He is setting himself up to succeed. He has continued to be a child of the marriage throughout the period from his graduation from high school and will likely continue to be a child of the marriage until he completes his formal education.

J is very similar to the daughter in Tughan . [ 70 ] As Z did not go back to school, he is in my view be entitled to a two-month grace period after he finished Grant MacEwan in the spring of 2013 to find full-time employment and make plans for his future, as was the case for the older child in Cole . [ 71 ] It is possible that Z may again become a child of the marriage if he starts post-secondary again.

As I have said earlier, it is important to encourage post-secondary education, and it is becoming more and more difficult for students to be able to pay for their own educations, even with substantial student loans. Not all students have the ability to earn scholarships or bursaries, and not all students have the ability to be at school full-time while working part-time. All children are different, and there is no standard formula or even time frame to be applied under the Divorce Act . [ 72 ] Ms. C is responsible to pay s 3 child support for Z for May and June, 2013 based on her attributed $50,995 income.

She will be responsible for 28.15 percent of 2/3 of Z’s s 7 expenses during that period.

Summary of

Section 3 and 7 Issues for September, 2012 to April, 2013 [ 73 ] I am satisfied that during this period, both boys were children of the marriage. Z was attending post-secondary education during that period. While J was not actually enrolled in a post-secondary program, he was engaged in various upgrading and pre- admission programs. Under the Divorce Act , I am satisfied that he remained a child of the marriage and was unable to withdraw from parental care. The evidence before me satisfies me that J has learning difficulties.

It is commendable that he aspires to pursue further education, and that he is displaying the perseverance to upgrade and put himself in a position to maximize his chances of success when he starts classes at Mount Royal University. [ 74 ] The consequences of this are that Mr. P is responsible for paying guideline support to Ms. C for J for all of 2012 based on his income of $130,129. He is entitled to credit for what was paid based on his previously-set income of $50,995. It is obvious that Mr.

P was earning substantially more income in 2012 than he led the court to believe in connection with the application in August, 2012. He is not entitled to the benefit of his lack of candour, and it is appropriate to have child support adjusted back to the beginning of 2012. [ 75 ] Mr. P is entitled to offset Ms. C’s obligations to him with respect to Z, which are based on her imputed income of $50,995. Based on Mr. P’s actual income for 2012, it is not appropriate to maintain the equal division of s 7 expenses among the parents and the children.

I am satisfied that both boys had and have the ability to earn some income on their own, and they should take significant responsibility for their own educations. Mr. P’s higher than represented income for 2011 and 2012 warrants that the parents’ share of post-secondary expenses be revisited. I find it is appropriate for the parents to contribute 2/3 of the costs of the boys’ education, rather than the 50 percent as previously determined. The boys are responsible for funding 1/3 of their education. It is important for them to take some responsibility for their futures.

However, there is no appropriate basis for Mr. P and Ms. C to equally contribute, based on the new financial information. That was appropriate when it appeared that Mr. P’s income and capacity was similar to Ms. C’s, but the actual information for 2011 and 2012 proves that assumption and finding was simply wrong. The 2/3 of the s 7 expenses attributable to the parents shall be divided proportionately to their incomes. [ 76 ] Mr. P’s obligations will continue to be based on his 2012 income of $130,129 until further court order, or agreement of the parties. Ms.

C’s obligations will continue to be based on an imputed income to her of $50,995. [ 77 ] Ms. C has submitted an affidavit sworn March 8, 2013. In it, she details the expenses she has incurred to that date relating to J’s education. She sets out course fees, supplies, tutoring, transit costs, health costs, technological support, and assessment costs totaling $17,020.20. I find those amounts reasonable. Mr. P is responsible to reimburse Ms. C 71.85 percent of 2/3 of that amount.

[ 78 ] Mr. P has provided evidence that Z’s costs for post-secondary from September, 2012 to April, 2013 were $5,082.08 The parties will share 2/3 of those expenses based on their proportionate incomes (Mr. P. at $130,129 – 71.85 percent and Ms. C at $50,995 – 28.15 percent). Payments between the parents will be netted. [ 79 ] Maintenance Enforcement is directed to enforce those arrears, together with any arrears of s 3 child support payments 30 days after the date of this decision.

May 2013 to December 2013 [ 80 ] The information provided satisfies me that J remains a child of the marriage and continues to reside with his mother. Z ceased to be a child of the marriage at the end of June, 2013 when he finished his classes and was given the benefit of a two month grace period. There is no information suggesting that he has pursued any further educational programs since then. If he did not go back to school, he is entitled to a two-month grace period before Mr. P and Ms. C can cease supporting him.

As decided above, if he had in fact gone back to school this fall, he would have remained a child of the marriage, and Mr. P would have been entitled to s 3 support from Ms. C for May through August, as well as ongoing while Z remained a student and was unable to withdraw from parental care. [ 81 ] Mr. P is responsible for child support for J from May 1, 2013 based on his 2012 income of $130,129 until further order of the court, or agreement of the parties. He remains responsible for his 71.85 percent of 2/3 of the s 7 expenses attributed to J. [ 82 ] Materials submitted dated September 16, 2013 indicate that Ms.

C has paid or will pay $4,971.78 this fall. J will require tutoring for an approximate cost of $3,240 over the fall. Mr. P will pay his proportionate share of those expenses (71.85 percent of 2/3 of $8,311.78) to Ms. C forthwith, on a provisional basis. This total will be adjusted after December 31, 2013 on Ms. C providing receipts to him. She should provide all receipts for the fall term by January 31, 2014. After December 2013 [ 83 ] J will continue to be a child of the marriage until he has completed his post-secondary education.

The provisions of my order dated July 24, 2013 will continue to apply regarding the annual exchange of financial information between the parties, and J continuing to provide his parents with regular information as to his attendance and achievement at university. [ 84 ] Mr. P will continue to be responsible for s 7 expenses for J, based on the above formula. His proportionate share of s 7 expenses shall be enforced by Maintenance Enforcement forthwith on Ms. C providing receipts satisfactory to Maintenance Enforcement. It seems best if Ms. C provides receipts to Maintenance Enforcement as Mr.

P has shown no interest in cooperating directly with her. [ 85 ] Z may again become a child of the marriage, obliging his parents to pay support to or for him as detailed in my order of July 24, 2013 subject to the modifications herein. I have no information suggesting when or if that may happen. Conclusion [ 86 ] It is obvious from these reasons that Ms. C has no financial obligations for Z after June 30, 2013. Either party may apply to revisit their obligations to each other should Z pursue post-secondary education in the future. [ 87 ] Mr.

P’s financial obligations for J have been continuous throughout the period July 1, 2012 to present, and will continue until J ceases to be a child of the marriage. That will not likely occur until he has completed his post-secondary education. [ 88 ] It is surprising that Mr. P has shown little interest in providing financial support to J as he pursues further education. It is clear that throughout these proceedings, Mr. P has minimized his income and income expectations to avoid support obligations for J. He has taken inconsistent positions as between Z and J.

It is disappointing that he has not paid any s 7 payments to or for J starting in the fall of 2012, despite J’s educational expenses having been far in excess of what was paid for Z. This has left Ms. C as the sole support for J, despite Mr. P’s very healthy income. [ 89 ] It is disappointing that Z has been drawn into this conflict. Ms. C has limited information concerning his status and appears to be dismissive of Z’s attempts to pursue post-secondary education.

It is sad indeed when the polarization of a family unit includes the children. [ 90 ] To make preparation of the order following this decision straightforward and hopefully simple, I will repeat my basic findings. [ 91 ] Mr. P’s Guideline income is as follows: 2010 $53,539 2011 $81,406 2012 $130,129 [ 92 ] Ongoing support (for 2013, 2014 and following years) will remain at the 2012 level until agreement of the parties or further court order, so long as J continues with his post-secondary education.

[ 93 ] Ms. C’s Guideline income is attributed to her as $50,995 based on my analysis and decision in 2012. That will remain until agreement of the parties or further court order. [ 94 ] J has remained a child of the marriage throughout these periods and will continue to be so as long as he attends Mount Royal University in January, 2014. He will likely remain a child of the marriage until he has completed his education. [ 95 ] Mr. P will pay s 3 support based on the incomes set above, and will continue to make such payments until the parties otherwise agree or further court order.

His s 7 obligations for J are based on his incomes: 50 percent for 2010, 61.48 percent for 2011 and 71.85 percent for 2012 and following years. For 2012, he is responsible to pay his share of 71.85 percent of all s 7 expenses for J to the end of August, 2012. Thereafter, the formula for post-secondary expenses requiring the parents to pay 2/3 of the s 7 expenses and the boys to be responsible for 1/3 of their education costs will come into effect. [ 96 ] Z ceased to be a child of the marriage effective June 30, 2011. Ms.

C is responsible for s 3 support from July 1, 2010 to June 30, 2011 based on her attributed income of $50,995. For 2010, she is responsible for 50 percent of Z’s s 7 expenses. For the first half of 2011, she is responsible for 38.52 percent of Z’s s 7 expenses. No s 3 or s 7 child support is payable by Ms. P from July 1, 2011 until August 31, 2012. At that time, because of his attendance at Grant MacEwan University, Z regained status as a child of the marriage. He remained a child of the marriage until April 30, 2013. He is entitled to a grace period to re-establish himself. Ms.

C is responsible to pay s 3 child support for him based on her attributed income of $50,995 from September 1, 2012 until June 30, 2013. She is responsible for 28.15 percent of 2/3 of Z’s s 7 expenses during that period. [ 97 ] Either party may apply for reconsideration of Z’s status as a child of the marriage status if he re-commences post-secondary education at some time in the future. [ 98 ] These calculations should be straightforward and easy. Mr. P is entitled to credit for any payments actually made to date. Payment obligations will be netted between the parents. [ 99 ] Ms.

C estimates that J’s s 7 expenses for the fall of 2013 will be 4,971.78 this fall. J will also require tutoring for an approximate cost of $3,240 over the fall. Mr. P is to pay his proportionate share of those expenses (71.85 percent of 2/3 of $8,311.78) forthwith. Ms. C will provide receipts and an accounting for such costs by January 31, 2014 and the amounts will be adjusted up or down at that time based on actual expenses. [ 100 ] Ms.

C has paid $2,035 towards J’s Mount Royal tuition starting in January, 2014, and expects that there will be ongoing expenses for books and other educational and health costs. [ 101 ] Mr. P will immediately reimburse Ms. C for his 71.85 percent share of 2/3 of the expenses incurred. [ 102 ] The amount directed to be paid by Mr. P for 2013, and the parents’ respective proportionate share of s 7 expenses, may be adjusted after full financial disclosure has been made for 2013. For Mr.

P, full disclosure should include either financial statements for LP Management, or records showing all amounts paid to LP Management as a result of Mr. P’s efforts. He has indicated he is neither a shareholder nor director of that company so he may not have control over production of any corporate records. He will have control over records of payments to LP Management resulting from his efforts or directions. Dated at the City of Edmonton, Alberta, this 19 th day of November, 2013. Robert A. Graesser J.C.Q.B.A. Appearances: Arthur H. Wenngatz and Lainie Chan Caron & Partners for LRP

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C) On her own behalf