McLean v McLean, 2013 ABQB 700

Court of Queen ’ s Bench of Alberta Citation: McLean v McLean, 2013 ABQB 700 Date: 20131129 Docket: 4803 154965 Registry: Edmonton Between: Donna McLean Plaintiff - and - Alexander Barton McLean Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _________________________________________ ______________ Introduction [ 1 ] This is an application by Alexander Barton McLean (“Mr. McLean”) filed on February 28, 2013 in which he seeks the following remedies:

a) a variation of s. 3 child support as currently set forth in the order of April 30, 2012, retroactive to January 1, 2011, to reflect the actual income of the parties;

b) a variation of his proportionate share of the s. 7 expenses based on the actual guideline incomes of the parties;

c) an order that he is no longer required to pay child support in relation to his son Carson, now 18 years of age, as of March [...], 2013. Alternatively, he seeks an order reducing the amount of child support which would otherwise be payable in relation to Carson;

d) an order that a copy of all s. 7 receipts submitted to Maintenance Enforcement also be simultaneously provided to him. [ 2 ] In support of his application to vary s. 3 child support, Mr. McLean relies on his affidavits filed on November 22, 2012, February 19, 2013, and June 3, 2013. [ 3 ] Mr. McLean seeks a variation of s. 3 child support back to January 1, 2011 on the basis that the April 30, 2012 support order was made in the absence of financial disclosure by Mrs. McLean for the years 2011 and 2012. According to Mr. McLean, this disclosure was not provided until late 2012.

Updated financial information is also now available for Mr. McLean. [ 4 ] Mrs. McLean has filed a cross-application in which she seeks the following relief:

a) an order dispensing with Mr. McLean’s consent for the children to travel outside of the country;

b) an order varying the order of May 2, 2012, by dispensing with the requirement for Cierra to discuss with Mr. McLean the choice of a driver training program;

c) a determination as to whether or not Carson remains a child of the marriage given his continuing education plans notwithstanding the fact that he has attained the age of 18 years;

d) reimbursement of $160,000.00 representing a sum insured by Great West Life health insurance;

e) the determination by the court of a litigation plan to move these proceedings forward. Background [ 5 ] The parties married on August 25, 1990 and separated on May 11, 2010. There are three children of the marriage, namely: Carson - currently aged 18; Cierra - currently 15; Savannah - currently 11. [ 6 ] The parties have joint custody, but the children reside with the Plaintiff. The Defendant has virtually no contact with any of them. A Bilateral Assessment was conducted by Dr. Brian Hindmarch in 2011, pursuant to the order of Greckol J. dated May 30, 2011. After receiving Dr.

Hindmarch’s report, the Court directed on December 1, 2011 that a Practice Note 7 Intervention be undertaken by Carol Chandler. Ms. Chandler’s report was completed in 2012, and she participated in a Case Management Meeting on March 14, 2012. While both Dr. Pickering and Ms. Chandler provided valuable insights as to the dynamics of the various family relationships, as well as recommendations to address on-going issues, these relationships remain shattered. [ 7 ] By Order dated April 17, 2012, I granted the parties a divorce.

The issue of spousal support and the division of matrimonial property have not yet been addressed and remain key issues outstanding between the parties. [ 8 ] The parties’ guideline incomes were fixed by order of Hillier J. dated July 26, 2011 as follows: Mrs. McLean - $61,789.00; Mr. McLean - $150,770.00. Child support was set at $2,737.00 per month effective August 1, 2011. He fixed the parties respective share of the s. 7 expenses at: 29.1% (Mrs. McLean) and 70.9% (Mr. McLean).

Section 7 Expenses - The Order of Hillier J. - July 26, 2011 [ 9 ] On July 26, 2011, Hillier J. directed that the parties were to pay their proportionate share of the following s. 7 expenses from June 1 to July 31, 2011:

a) School uniforms - $742.40

b) Gymnastics - $582.75

c) Driver Training (Carson) - $1,314.69

d) Orthopedic shoes - $570.75

e) Violin lessons - $1,000.00

f) Physiotherapy - $64.73

g) Dance shoes/costumes/apparel - $1,215.79

h) Swimming - $45.00

i) Volleyball - $65.00

j) YMCA - $123.00

k) Summer Camp (2010) - $861.00

l) Piano - $2,477.00

m) Dance fees and competition - $7,462.99

n) Daycare fees - $6,500.00

o) School supplies - $745.77

p) Car insurance - $2,600.00 Total - $26,370.86 [ 10 ] Hillier J. further directed that the parties share equally the s. 7 expenses related to Kumon ($4,275.00) and Summer Camps ($890.00) - a total of $5,165.00. He fixed the Defendant’s arrears on these s. 7 expenses at $2,582.50. On a go-forward basis, Hillier J. directed that the Plaintiff would be responsible for all expenses associated with Kumon and violin from August 1, 2011, unless the parties otherwise agree. [ 11 ] He also directed that from August 1, 2011 on a go-forward basis the parties would pay their proportionate share of the following s. 7 expenses:

a) Private school tuition, uniforms, school supplies and any other mandatory expenses;

b) Dance lessons, apparel and footwear;

c) Daycare costs not to exceed $500.00 per month with receipts to be provided. Gas and mileage will continue to be reimbursed over and above the $500.00 payment with receipts;

d) Piano lessons;

e) YMCA monthly membership;

f) Swimming costs;

g) Medical and dental costs not covered by either party’s employment benefit plan;

h) Volleyball expenses;

i) Car insurance premiums related to Carson. [ 12 ] The order of Hillier J. further provided that the following category of expenses, being expenses that exceed $500.00, would be discussed and agreed to by the parties, including:

a) Dance competition fees both inside and outside the Province;

b) Special trips;

c) Driver’s training;

d) Car insurance. [ 13 ] On May11, 2012, I issued extensive reasons relative to an application brought by Mr. McLean to set s. 7 expenses on a go- forward basis. This followed a special half-day case management meeting during which both parties made extensive submissions and filed substantial affidavit and other supporting material. In my reasons, I confirmed the guidelines incomes initially set by Hillier J. in 2011, as well as the parties’ respective share of the on-going s. 7 expenses. At the time, neither party had filed their 2012 income tax return. In addition, Mrs.

McLean had not then filed her 2011 income tax return. The Current Applications – New Evidence [ 14 ] Mr. McLean’s income tax return reveals that his income from employment for 2012 was $145,468.57. He also had rental income of $3,396.98, but I exclude rental income in determining the guideline incomes of both Mr. and Mrs. McLean on the basis that the 2011 order of Hillier J. directed that neither party was to use any of the income derived from rentals. [ 15 ] His 2011 earnings were $148,194.97, excluding rental income.

He proposes that his 2012 income should be used to calculate his s. 3 child support obligations for 2013. [ 16 ] Mrs. McLean’s 2012 income tax return shows a total income of $99,764.94, comprised of the following components:

a) Employment income $90,564.94

b) Interest and other investment income $ 140.03

c) Rental income $ 7,200.00

d) Other income $ 1,057.06

e) Total Income $99,764.94

f) Total Income less rental income $92,564.94 [ 17 ] In her affidavit sworn June 21, 2013, she deposes that her total income in 2012 was $99,215.00, including rental income of $7,200.00. She goes on to depose that her actual 2012 income in 2012 was $83,364.00, though offers no explanation as to how that figure was determined. Even deducting the rental income of $7,200.00, there remains an amount of $8,651.00 that is unaccounted for in terms of her income tax return and her claimed actual income for the year. [ 18 ] Mrs.

McLean’s total income for 2011 was $104,531.00, as set out in her income tax return, including rental income of $7,200.00. Excluding the rental income, her income was $97,597.61. Mr. McLean’s Application [ 19 ] Mr. McLean takes the position that he should not have to support his son Carson any longer. Carson is now 18 years of age. Moreover, Carson is estranged from Mr. McLean and has had no contact or communication with his father since the parties separated in May, 2010. [ 20 ] Mr. McLean proposes the following changes in the current allowable s. 7 expenses:

a) No on-going responsibility to cover his proportionate share of the s. 7 expenses relative to Carson other than for dance;

b) The financial responsibility to cover his share of the costs of Cierra and Savannah attending private school (Tempo);

c) Dance expenses for all three children should be capped at $2,500.00 per year per child;

d) Piano lessons for Cierra and Savanah should be capped at $500.00 per year per child;

e) Dance equipment for Cierra and Savannah should be capped at $1,000.00 per year per child;

f) Gymnastics and swimming should be eliminated as extracurricular activities for the purposes of s. 7;

g) Current babysitting expenses paid to Mrs. McLean’s mother should be eliminated. [ 21 ] In his affidavit, Mr. McLean deposes that he would be left with $2,173.00 per month in terms of net pay if his s. 3 child support were to be reduced, as proposed, to $2,737.00 per month, and his share of the s. 7 expenses reduced to $1,890.00 per month. Of the $2,173.00 net income, $1,500.00 would be required to cover his monthly rent. According to this scenario, he would have $673.00 per month in disposable income, not including his rent. [ 22 ] Mrs. McLean urges me to consider that Mr.

McLean’s s. 7 expenses have already been reduced as a result of the fact that Carson graduated from high school in June, 2013 and his private school tuition is no longer payable by the parties. She also points to the fact that the cost of Carson’s university education, including books, will be covered by an RESP. Finally, she suggests that the s. 7 expense relating to the cost of braces for Carson has now been fully paid. [ 23 ] In her affidavit, Mrs. McLean provides a list of 18 activities or expenses totalling $20,749.14 and says that Mr.

McLean should be required to pay his proportionate share of these expenses. She also sets out the children’s

schedule for the summer of 2013. During the months of July and August, the children will be in the Edmonton area for a total of 9 days. [ 24 ] Mrs. McLean has enrolled Cierra and Savannah at Tempo for the school year commencing September, 2013. In her affidavit, she indicates that she has already paid the fall deposit. Analysis [ 25 ] On the basis of current, actual income information from both parties, Mr. McLean asks this court to review both his s. 3 child support and his proportionate share of s. 7 expenses.

Once these determinations have been made, he asks the court to set the new child support amount and the new proportionate share of the s. 7 expenses retroactive to January 1, 2011. Mrs. McLean does not take issue with a recalculation based on up-to-date information, but says that Hillier J. set arrears to August 1, 2011 and that I should not make a new order which disturbs his findings in this regard. I agree. In my view, it is not appropriate to disturb Hillier J.’s findings with respect to arrears up to the date of his decision.

As such, my order adjusting child support and the parties’ respective share of the s. 7 expenses will be retroactive to August 1, 2011. [ 26 ] Based on the information set forth in the parties respective 2012 income tax returns, I set their 2012 guideline income, and their respective share of the s. 7 expenses, as follows: Mr. McLean $145,468.57 (61.1%) Mrs. McLean $ 92, 564.94 (38.9%) [ 27 ] I set Mr. McLean’s s. 3 child support at $2,660.00 per month for 2012. I accept Mr. McLean’s invitation to tentatively set his 2013 s. 3 monthly child support payment on the basis of his 2012 income.

This amount will obviously have to be adjusted once his actual income for 2013 has been determined. [ 28 ] With respect to 2011, I set their guideline incomes and their respective share of the s. 7 expenses as follows, effective August

1, 2011: Mr. McLean $148,194.97 (60.4%) Mrs. McLean $ 97,331.00 (39.6%) [ 29 ] These new amounts will obviously require some adjustments between the parties in terms of child support and re-calculations of the parties’ respective share of the s. 7 expenses. If the parties are unable to agree on the terms of an order fixing these various amounts, they may apply to the court for further direction. s. 7 Expenses [ 30 ] This matter has been the subject of frequent case management meetings since the initial referral to case management in September, 2011.

While a great deal of the time devoted to case management meetings has focused on Mr. McLean’s estrangement from his children and efforts dedicated to try and address this situation, a substantial amount of time has also been devoted to financial issues, most notably s. 7 expenses related to private schooling and extensive extra-curricular activities. [ 31 ] It is important, in my view, to bear in mind that s. 7 of the Federal Child Support Guidelines deals with “special or extraordinary expenses”.

The language of s. 7 is as follows: 7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated , taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation (emphasis added). [ 32 ] It is clear to me after more than two years of case management that the parties simply cannot afford all of the extracurricular activities in which the children are currently engaged.

Mr. McLean’s position throughout has been that the family’s spending pattern prior to separation was out of control and this was a significant factor in his decision to leave the marriage. [ 33 ] I have serious concerns as to whether the extent of all of these extra-curricular activities is, indeed, in the best interests of these children. While it is clear that the children have excelled in these activities, particularly dance, and achieved great success in this regard, the gruelling

schedule they maintain leaves little time for anything else. The current estrangement of all three children from their father is a complex issue, but the efforts made by the court during the course of these proceedings to try and facilitate contact between the two daughters and Mr.

McLean was frequently met with school and activity schedules that simply did not allow for unstructured family time. [ 34 ] With the foregoing in mind, I approach the issue of s. 7 expenses for extra-curricular activities with some caution, mindful that the parties cannot afford the current level of spending and the concern that the extent of these activities may well not be in the best interests of these children. As more fully described below, I am also of the view that Mrs.

McLean confuses “extraordinary expenses” with ordinary expenses that are properly covered by s. 3 child support. [ 35 ] It should, in my view, have been abundantly clear to Mrs. McLean from my written decision of May 11, 2012, that I took the view that the parties simply could not afford to continue to maintain the children in private school and their numerous extra-curricular activities. As such, I made it clear that I was of the view that Cierra and Savannah should be enrolled in the public education system starting in the fall of 2013.

As such, I advised the parties that the end of the 2012-2013 school year marked a logical point in time to make this change. Not only did Carson graduate from Tempo in June, 2013, but Cierra completed Grade 9 and would be moving on to high school and Savannah completed Grade 6 and would be moving on to junior high school. Mrs. McLean’s decision to enroll Cierra and Savannah at Tempo for the coming school year, seemingly without any discussion with Mr. McLean, flies in the face of the Court’s clear statements to the contrary. [ 36 ] Mrs.

McLean is, of course, free to cover the cost of Cierra and Savannah continuing to attend Tempo. However, under all of the circumstances, most particularly my view that the parties simply cannot afford this on-going expense, I conclude that Mr. McLean has no responsibility to contribute to this expense. He will, of course, continue to be required to contribute his proportionate share of the costs of school expenses which would arise irrespective of the school Cierra and Savannah attend. [ 37 ] In her affidavit, Mrs. McLean also proposes that the parties split the cost of dance performance travel and school trips.

She suggests that a 50/50 split is appropriate. She makes reference to a Tempo School French trip to Quebec which Savannah has been invited to attend in the spring of 2014. The cost of this trip is $2,300.00. [ 38 ] Mrs. McLean also indicates that each of the children will be attending a summer camp during the summer of 2013. Carson will be attending Red Boot Ukrainian Dance Camp; Cierra and Savannah will be attending the intensive Winnipeg Ballet School of Dance. The total cost of these camps is $2,470.00. [ 39 ] In my view, these are not ordinary s. 7 expenses.

The need for the parties to discuss and agree on these types of extraordinary expenses was set out at paragraph 33 of my written decision dated May 11, 2012. At that time, I found that the Ukrainian Viter Trip for Carson, Cierra and Savannah for the summer of 2012 was not a proper s. 7 expense in the absence of an agreement between Mr. and Mrs. McLean to jointly incur this expense. I make the same observation relative to the summer camps for all three children arranged for the summer of 2013. In the absence of Mr. McLean’s agreement to jointly incur these expenses with Mrs.

McLean, I am not prepared to find that Mr. McLean has a financial obligation to cover any portion of the cost of same. Mrs. McLean is, of course, free to make whatever arrangements for the children for the summer that she believes are appropriate and suitable. However, as previously indicated, in the absence of Mr. McLean’s prior agreement to cover a portion of the cost of these activities, Mrs. McLean will be responsible for the full cost of such activities.

[40] The proposed trip to Quebec for Savannah in the spring of 2014 is, similarly, an extraordinary expense requiring theagreement of both parents before any cost is to be split between them. [41] Mrs. McLean has provided a list of her s. 7 expenses to June 15, 2013. I propose to deal with some of these items in detail.However, I make the general observation that these items are only “approved’ to the extent that they are specifically contemplated by myMay, 2012 order or have been the subject of a prior agreement with Mr. McLean. [42] Ordinary school supplies are not, in my view, a valid s. 7 expense.

As such, receipts provided from Staples for binders andother items; dollar store items; $829.00 for an iPad; $871.00 to the Apple store on April 6, 2013; printer cartridges (Costco), pictureframes for school awards (Michaels - $54.19), and other associated items are not properly attributed to s. 7 expenses. Rather, in my view,these are the very types of items that are intended to be covered by ordinary child support. Mrs. McLean may, of course, seekcontribution from Mr. McLean for larger items, such as an iPad and other computer equipment, but this requires Mr. McLean’s prioragreement. [43] Mrs.

McLean also includes a claim for $750.75 relating to clothing purchased for Carson at Moore’s. Receipts for clothingand footwear purchased at Winners, and dresses for Savannah’s graduation ($149.40) are also included in the claim. In the absence ofsome extraordinary circumstance that was the subject of a prior agreement between the parties, children’s clothing is not a valid s. 7expense. Rather, clothing is ordinarily covered by s. 3 child support. [44] I note that the amount of $90.00, the cost of two tickets to attend Carson’s graduation event at the Westin Hotel is alsoincluded as a s. 7 expense.

There is no indication as to who used these two tickets. In any event, I am of the view that this is not a propers. 7 expense. [45] Mrs. McLean also includes dance competition fees for Cierra and Savannah; hotel accommodation in Vermillion in April,2013 to attend a dance competition; and dance group photographs for Savannah as additional s. 7 expenses.

The 2011 order of Hillier J.specifically provided that the parties would share the cost of “dance lessons, apparel and footwear”, and that expenses associated withdance competition fees both inside and outside of the Province, and special trips, being expenses that exceed $500.00, would bediscussed and agreed to by the parties. Dance group photographs do not, in my view, fall within the category of “dance lessons, appareland footwear” and, as such, are not a valid s. 7 expense.

Dance competition fees are only a valid s. 7 expense if the total cost associatedwith the attendance at the competition, including any required hotel accommodation, was less than $500.00. [46] Other items claimed by Mrs. McLean as s. 7 expenses include $16.00 for a math contest; $241.49 for the snowboard program;$294.00 to Smart Photography; and $81.25 for Carson’s cell phone. Neither the math contest nor Carson’s cell phone are proper s. 7expenses. On the material provided by Mrs. McLean, it is not possible for me to determine whether the Smart Photography is or is not aproper s. 7 expense. [47] Mr.

McLean asks that a cap be placed on dance expenses, dance equipment and piano lessons for Cierra and Savannah on ago-forward basis. He suggests that the cap should be $3,000.00 per child per year for dance; $500.00 per child per year for piano lessonsand $1,500.00 per child per year for dance equipment. In my view, this is a reasonable approach to what has been a very challengingissue for the parties.

Starting January 1, 2014, the parties shall pay their proportionate share of these s. 7 expenses up to the cappedamounts. [48] Swimming and gymnastics will be removed from the list of approved s. 7 activities effective January 1, 2014. [49] Mrs. McLean shall from this point onward provide a copy to Mr. McLean of any and all receipts submitted to MaintenanceEnforcement for claimed s. 7 expenses.

Does Carson continue to be a child of the marriage? [50] The term “child of the marriage” is defined in s. 2 of the Divorce Act: “Child of the marriage” means a child of two spouses or former spouses who, at the material time, (

a) Is under the age of majority and who has not withdrawn from their charge, or (

b) Is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw fromtheir charge or to obtain the necessaries of life. [51] The onus to establish that a child is a “child of the marriage” is on the party seeking child support to maintain a child who is over the age of majority: Wahl v. Wahl, 2000 ABQB 10; Whitton v. Whitton, (1989) (ON CA), 21 R.F.L. (3rd) 261(Ont. C.A.); Elliot v Elliot [1193] B.C.J. No. 328 (B.C.S.C.); Ciardullo v. Ciardullo (B.C.S.C.); Pollard v.

Pollard1999 ABQB 976. [52] In Pollard, Johnstone J., following an extensive review of the authorities, held that a determination of whether or not a childcontinues to be a “child of the marriage” is fact driven and, as such, requires evidence. She referred to the oft-cited decision of MasterJoyce in Farden v. Farden 1993 Can LII 2570 (B.C.S.C.), where the following factors were set out:

(1) Whether the child is, in fact, enrolled in a course of studies and whether it is a full-time or part time course of studies;

(2) Whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(3) The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because

there is nothing better to do;

(4) The ability of the child to contribute to his own support through part-time employment;

(5) The age of the child;

(6) The child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated arelationship from the parent from whom support is sought. [53] I agree with Johnstone J.’s conclusion (at para. 33) of Wahl that: Courts have generally regarded a child over the age of majority who is in full-time attendance at an educational institution as a “child ofthe marriage” and therefore entitled to support. There has been a general acceptance of education pursuits as a “cause” that renders achild unable to withdraw from his or her parents’ charge: Fair v.

Jones, [1999] N.W.T.J. No. 44 (S.C.) [54] Johnstone J. also adopted the three criteria set out in Welsh v. Welsh, [1998] O.J. No. 4550 (Ont. Ct of Just. – Gen.Div.),relative to this issue in the context of a child attending a post-secondary institution (at para. 38):

i) The adult child must have an aptitude that is reasonably likely to lead to academic success; ii) He or she must be pursuing the course of studies with diligence; iii) There should be a reasonable likelihood that successful completion of the course of studies will lead to gainful and self-supporting employment. [55] In my view, there is simply insufficient evidence before me at this point in time to resolve this issue.

In particular, I believethat it is necessary for the parties to provide me with additional evidence on items 2, 3, 4 and 7 of the above-noted Farden factors.While I am certainly prepared to hear from the parties on item 7, as well as the so-called Welsh criteria, the evidence already before meregarding Carson’s academic performance to date likely provides a sufficient basis to address this factor. [56] I do, however, believe that I have sufficient evidence before me to address the eighth of the Farden factors dealing with thecurrent state of the relationship between Mr.

McLean and his son Carson. [57] In Farden, Master Royce addressed this issue as follows (at p. 463): I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparentreason, that is a factor to be considered by the trial judge in determining whether it would be “fit and just” to provide maintenance forthat child. A father-child relationship is more than simple economic dependency. The father is burdened with heavy financialresponsibilities and the child has few duties in return.

It seems reasonable to demand that a child who expects to receive support entertainsome type of relationship with his or her father in the absence of any conduct by the father which might justify the child’s neglect of hisor her filial duties. [58] Counsel for Mrs. McLean cites a number of cases to support the proposition that the maintenance of a good relationshipbetween parent and child is not a pre-requisite to a parent being required to support a child beyond the age of majority. See: James v.Morris,

(1997) A.J. #650 (Q.B.); Louise v. Scheuer, 1995 Can LII 2988 (BCSC); Fraser v. Jones, (Sask QB; Evansv. Evans, 1998 Can LII 13517 (SKQB) and Wahl. As such, Mrs. McLean urges me to minimize the economic consequences of marriagebreakdown on children; that Carson would doubtless have received financial support to attend post-secondary education if there had beenno marital breakdown; that the financial burden to support Carson should not be borne solely by Mrs. McLean; and that a denial wouldcause further resentment between father and son. [59] For his part, Mr. McLean says a number of things in this regard.

First, in his affidavit sworn June 3, 2013, he says that hissupport obligation towards Carson should be reduced due to the estrangement between the two of them. Similarly, in his affidavit swornFebruary 19, 2013, Mr. McLean says that it is unfair that he should be shouldered with the financial responsibility for a child who hasreached the age of majority and who wants nothing to do with him. In support, Mr. McLean attaches to his affidavit a number of text andemail messages to Carson which are stated to have received no response. Further, Mr.

McLean attaches a letter from Kathleen Linton,counsel appointed to represent the interests of the three children. The letter, dated May 24, 2012, states that Carson “is emphatically notinterested in repairing or pursuing a relationship with his biological father”, and that he wished to terminate his father’s guardianshiprights and parental responsibilities. Ms.

Linton goes on to indicate that Carson’s only concern relates to the potential financial impact of atermination of the relationship. [60] While every case turns on its own peculiar facts, I find the decision of Gerein J. of the Saskatchewan Court of Queen’s Benchin Fraser to be helpful in terms of how best to approach this admittedly very difficult situation. In Fraser, the separation of the parties in1990 had a significant impact on the youngest child, “K”, then aged thirteen years.

The father had difficulty exercising access followingseparation and in December, 1991 the two children told the father that they no longer wanted to have anything to do with him. Thefather’s attempt at reconciliation at the time of “K’s” birthday and graduation from grade 12 was rebuffed, though appears to have atleast left open the possibility of reconciliation at some point in the future. [61] In dismissing the father’s application to terminate child support upon “K” attaining the age of eighteen, the Court stated asfollows (at p. 2-3):

I accept that “K” has a sincere inner conflict vis a vis her father and her refusal to communicate with him is not motivated by simplepetulance, malice or vindictiveness. As well, I recognize that she has attained her legal majority, but it does not necessarily follow thatshe is fully mature and the likelihood is that she is not. Presumably, as this process of maturity continues and time passes, she will bebetter able to deal with the past. As well, her accountability will increase.

The result may be that she will have to bear the consequencesof her decision to persist in her attitude toward the applicant and that consequence may be the cessation of financial support. However, inmy opinion, it is too early to implement such a major alteration in this young person’s life. The daughter, “K” has the aptitude and skills to continue her education at a university. She is presently doing that on a full-time basisand, insofar as possible at this time, has definite and realistic plans for her future studies. She should be afforded an opportunity to pursuethose plans.

However, if she is to do so she cannot withdraw from the support of her parents or obtain necessaries on her own behalf.Applying the principles contained in the jurisprudence in this area, I have no hesitation in concluding that at this time the child, “K” isstill a child within the meaning of the Divorce Act. [62] Gerein J.’s observation which immediately follows the above passage is, in my view, particularly apt to the circumstances inthe within matter. He stated: Having come to that conclusion, I very deliberately add that this does not relieve the child of all responsibility.

She has an obligation,insofar as possible and reasonable, to take action to at least contribute toward her needs. Thus, she is expected to seek out summeremployment which will provide meaningful remuneration and to give consideration to student loans. The application should be providedwith information about these matters.

As well, it should be appreciated that a time may come prior to the completion of the entireeducation when the proper conclusion will be that “K” no longer is a child as defined in the Act. (emphasis added) [63] In approaching this admittedly difficult issue, I am mindful of Johnstone J.’s comment in Wahl (at para. 67) that in thesetypes of situations “the quality of the parent/child relationship rarely determines the matter.” Rather it is simply one of the factors to betaken into consideration unless the circumstances are extremely grave.

In the final result, however, a court is bound to consider theprinciple expressed by Ritchie J. in Jackson v. Jackson, (SCC), [1973] S.C.R. 205 at 218: ...the line is to be drawn at such point as the Court granting a decree nisi of divorce thinks is just and fit to draw in all the circumstancesof the particular case at issue, having due ‘regard for the conduct of the parties and the condition, means and other circumstances of eachof them.’ [64] I do not view the circumstances in this particular case to be so grave as to lead to the conclusion that Carson is no longer achild of the marriage.

While the circumstances are clearly unfortunate, even tragic, I am not prepared on this factor alone to come to theconclusion that Mr. McLean should not be required to continue to provide child support for Carson. [65] As set out in paragraph 53, above, additional evidence is required for me to make a determination as to whether or not Carsoncontinues to be a child of the marriage notwithstanding the fact that he has attained the age of majority. As Mrs.

McLean has the onus ofestablishing that he continues to be a child of the marriage, I give her leave to file additional evidence within 21 days of the date of theissuance of these reasons. Mr. McLean may file any additional evidence that he wishes to place before the court 7 days after the receiptof Mrs. McLean’s materials. Mrs. McLean’s Cross Application [66] I now turn to consider Mrs. McLean’s cross application. Consent to Travel Outside of the Country [67] It is abundantly clear that there has been a serious break-down in communication between the parties relative to issuespertaining to their children.

While this is most regrettable and, hopefully, is not beyond repair, there is a practical reality that cannot beignored. The children’s dance and other activities involve frequent international travel. Given the lack of communication between Mr.McLean and his three children, it would be in their best interests to be permitted to travel outside of the country without the necessity ofobtaining his consent. As such, I would direct that Mrs. McLean is at liberty to take the children out of the country without Mr.McLean’s consent. However, Mr.

McLean is entitled to reasonable notice of any planned international travel and I would direct Mrs.McLean to provide at least 30 days’ notice of any planned trips with the children out of the country. Cierra’s Driver Training Education [68] In my reasons filed May 11, 2012, I found that Mr. McLean was required to pay his proportionate share of Cierra’s drivertraining education. I also directed that Mrs. McLean and/or Cierra provide Mr. McLean with various available options and that Mr.McLean and Cierra would, together, select a program. In her affidavit sworn June 13, 2013, Mrs.

McLean describes various difficultieswhich have been encountered in obtaining Mr. McLean’s participation in this process. She now asks me to vary my previous order anddispense with the requirement for Mr. McLean to be involved in the selection of the program. Mr. McLean’s various affidavits are silenton this point. [69] Under the circumstances, I agree that the goal of trying to bring Mr. McLean and Cierra together relative to the selection of adriver training program has, unfortunately, not been successful. Mrs. McLean’s request to dispense with Mr.

McLean’s involvement inthe selection of a driver training program is granted. She may enroll Cierra in a program that she considers appropriate. Mr. McLean willbe required to pay his proportionate share of this s. 7 expense. Re-imbursement of $160 representing a sum insured by Great West Life health insurance. [70] Mrs. McLean seeks reimbursement of $160.00 representing a sum she says was paid by Great West Life health insurance butnever provided to her by Mr. McLean. She also seeks any further and future reimbursement Mr. McLean receives from Great West Liferelative to expenses paid for by Mrs. McLean.

[ 71 ] Mr. McLean’s response is that he provided Mrs. McLean with a list of all expenses and reimbursements from Great West Life in an email dated April 25, 2013. He says that the $160.00 that Mrs. McLean is claiming was submitted through her own health insurance and she received $70.00. Mr. McLean further states that he received reimbursement via Great West Life in the amount of $90.00. The email

summary of expenses/reimbursements, two cheques ($52.43 and $90.00), together with the Great West Life statements were sent to Mrs. McLean via Xpress Post on May 4, 2013. Mr. McLean attaches to his June 27, 2013 concise letter copies of these documents, together with a copy of the Canada Post tracking record which discloses that the package was never picked up and was returned on June 25, 2013. [ 72 ] In principle, I agree with Mrs. McLean that all reimbursements from Great West Life for medical expenses should be provided to the parent who incurred the initial expense. I do not believe that Mr.

McLean is suggesting otherwise. I am certainly prepared to include a provision to this effect in an order. However, given the conflicting evidence before me on this specific sum referenced by Mrs. McLean, I am simply unable to resolve this issue. I would urge the parties and their counsel to try and resolve this matter on their own. If they are unable to do so, I am prepared to hear from them further. Litigation Plan [ 73 ] Finally, Mrs.

McLean’s cross-application asks the court to set a deadline for the provision of responses to undertakings and, more generally, to set deadlines for the completion of all remaining steps required to get this matter to trial. [ 74 ] The parties attended for Questioning on Undertakings in May, 2013. Given the delay in completing and issuing these reasons, it is not clear to me whether or not answers to undertakings have now been fulfilled. [ 75 ] The parties are directed to each provide me with their litigation plan addressing the timelines to complete the remaining steps leading to trial.

This litigation plan is to be submitted no later than January 15, 2014. Dated at the City of Edmonton, Alberta this 28 th day of November, 2013. M. David Gates J.C.Q.B.A. Appearances: Collista Coles for the Plaintiff Michael Furman for the Defendant Kathleen Linton for the Children