Fraser v Airhart, 2016 ABQB 136

Court of Queen ’ s Bench of Alberta Citation: Fraser v Airhart, 2016 ABQB 136 Date: 20160308 Docket: 4803 127875 Registry: Edmonton Between: Adele Nicole Fraser Applicant - and - Kenneth William Airhart Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In 2015, Ms. Fraser registered with Alberta’s Maintenance Enforcement Program for the first time. The last court order for child support was made in 2013, before the parties’ oldest child became an adult. None of the court orders dealing with child support authorized specific

section 7 expenses; the court orders only required the parents to share s. 7 expenses proportionately. [ 2 ] When she registered with MEP, and was asked to swear to outstanding arrears, Ms. Fraser identified both s. 3 and s. 7 arrears. [ 3 ] Mr. Airhart disagrees with Ms. Fraser’s assessment of arrears. Both parties were unrepresented at MEP. MEP purported to make determinations about whether the adult child was a “child of the marriage” for purposes of child support, and which of the

expenses made in relation to that child were s. 7 expenses. [ 4 ] On this special chambers application, Ms. Fraser asks for retroactive support for all three children from August 18, 2014, for ongoing support for all three children, and for s. 7 expenses relative to the adult child who is attending university. [ 5 ] The court is unable, on the basis of the material presented by the parties, to address the issues raised by them. The court requires the parties to address the issue of whether their oldest child was able to withdraw from their care when she became an adult after finishing high school.

This may involve arguments about whether the child’s choice of an unaccredited program could lead to employment or whether that child should be given a grace period before taking up a program which leads to employment. [ 6 ] When, one scholastic year after finishing high school, the oldest child began a course of study at a university, case law suggests that she then embarked on a program which would lead to employment and, therefore, that she was then clearly a “child of the marriage” for child support purposes whether or not she had that status during the previous academic year.

However, the court will have to decide whether the oldest child’s decision to take a full-time, full-year double-degree program is reasonable, and, if so, what contribution that adult should make to her post-secondary education. Ms. Fraser should advance arguments and evidence to support her position on those issues. [ 7 ] The parties’ middle child, who is also now an adult, is attending a high school up-grading program. Here again, Ms.

Fraser should advance arguments and evidence about whether that adult child’s repeat of a scholastic program puts that child in a situation where she is unable to withdraw from her parents’ charge. If that child qualifies as a child of the marriage for purposes of child support, Ms.

Fraser will also have to address the issue of that child’s contribution to her expenses. [ 8 ] Although MEP is honestly, and with the best of intentions, trying to assist parents in solving their child support disputes, MEP has no authority to make determinations either about whether an adult child is able to withdraw from its parents’ charge or about whether child-related expenses are s. 7 expenses. MEP‘s jurisdiction is limited to the enforcement of orders made by the court. [ 9 ] Here, the only part of the last court order which dealt with s. 7 expenses stated: 5. [Mr. Airhart] shall pay to [Ms.

Fraser] his proportionate share, which is 50.14% for additional expenses for the children and [Ms. Fraser] shall pay the balance, which is 49.86% of the additional

section 7 expenses. [ 10 ] That term did not authorize MEP to decide which expenses were s. 7 expenses for these parents. That order merely allowed MEP to enforce the s. 7 expenses on which the parties agreed, i.e. to which they both consented.

MEP cannot attempt to “give effect to the court’s intention” on s. 7 expenses: the court expressed no intention concerning s. 7 expenses. [ 11 ] An argument could perhaps be made, in a situation where both parties are represented, to the effect that, after August 1, 2015, if the lawyers allow a court order to issue which merely identifies the proportionate share of each of the parents to s. 7 expenses, those lawyers are consenting, on behalf of their clients, to pay the s. 7 expense listed on the MEP website.

However, these parties are unrepresented and their court order pre-dated August 1, 2015. [ 12 ] Not only does MEP lack authority to make s. 7 expense decisions, it should not attempt to fill that void: it should not fragment the institutional response to parents’ needs for information, mediation and representation in child support disputes. Moreover, because MEP is an enforcer of child support obligations, it does not have the necessary appearance of impartiality that would allow it to become an arbiter of child support.

Nor, because it is not bound by the Administrative Procedures and Jurisdiction Act , is MEP able to guarantee procedural fairness to litigants.

Cases and authority cited [ 13 ] By the court : On the issue of whether attendance at an unaccredited post-secondary institution qualifies an adult child for child support: Kinshella v Kinshella 2013 ABQB 253 . [ 14 ] On the issue of when adult children can withdraw from their parents’ charge : Figliano v Figliano 2016 ONSC 220 ; Parton v Moro 2015 BCSC 2250 ; Hartshorne v Hartshorne 2010 BCCA 327 at para. 76 . [ 15 ] On the issue of an adult child’s contribution to the cost of their post-secondary education : Winstanley v Winstanley 2016 MBCA 17 ; C.E.J.K. v. H.W.K. 2016 SKQB 24 ; Yacoub v.

Yacoub 2015 ONSC 6589 ; LeBlanc v. LeBlanc 2015 NBQB 164 ; McLean v. McLean 2014 ABQB 93 . [ 16 ] On the issue of the potential for challenging the Guidelines: Strickland v Canada (Attorney General) 2015 SCC 36 . [ 17 ] On the issue of procedural fairness: Administrative Procedures and Jurisdiction Act RSA 2000, c. A-3. [ 18 ] On the issue of whether continued attendance at a secondary educational institution after adulthood can qualify an adult child as a “child of the marriage” for purposes of child support: Dubauskas v Sigurdson 2016 ABQB 84 . Appendix A : MEP website material 1. Background

a) Background information relating to the parties [ 19 ] The parties married in 2000 and separated approximately one year later in 2001. They are the parents of three children who are currently 20, 18 and 14 years old. [ 20 ] In 2003, when both parties were represented, they entered into a consent order pursuant to which Mr. Airhart was to provide

financial disclosure by July 15, 2003. [ 21 ] In 2007, this court granted a divorce judgment; Ms. Fraser was represented and Mr. Airhart was not. The divorce judgment recorded the guideline incomes for Ms. Fraser as $19,000.00 and for Mr. Airhart as approximately $46,500.00. The judgment ordered Mr. Airhart to pay Ms. Fraser $888.00 per month for support of the children of the marriage. The judgment also ordered: 5. IT IS ORDERED That the parties shall share rateably in proportion to their respective incomes with the Plaintiff being responsible for 29.01% of any extraordinary expenditures pursuant to

section 7 of the Federal Child Support Guidelines and the Defendant being responsible for 70.99% of any extraordinary expenditures pursuant to

section 7 of the Federal Child Support Guidelines. [ 22 ] In April 2013, when both parties were unrepresented, Mr. Airhart obtained an order making his residence the primary residence of the second oldest child of the marriage, and lowering his remaining child support payment to $600.00 per month on an interim pre-disclosure without prejudice basis. [ 23 ] On April 25, 2013, when both parties were unrepresented, this court issued an order for child support per month based on Mr. Airhart’s guideline income of $58,286.00 and Ms. Fraser’s guideline income of $57,949.00.

Although no transcript was provided of the court’s reasons on which the resulting order was based, it appears that the court order that Mr. Airhart pay $344.00 per month in child support was based on a mathematical set-off, he being the primary parent of one of the three children and the parties having more or less equivalent annual gross incomes. The court also ordered: 5. [Mr. Airhart] shall pay to [Ms. Fraser] his proportionate share, which is 50.14% for additional expenses for the children and [Ms. Fraser] shall pay the balance, which is 49.86% of the additional

section 7 expenses. [ 24 ] In August, 2013, the oldest of the parties’ children became an adult; she had just finished high school. In September 2013, that child moved to British Columbia and attended an unaccredited Bible school. [ 25 ] In September 2014, that child returned to Alberta to live with her mother and to attend the University of Alberta; she is now apparently registered as a full-time, full-year student, ie. taking courses all year round, in a 5 year, double bachelor’s degree program, leading to a BA in Native Studies and a BEd in elementary education.

The tuition fees paid for the fall 2014 term were $2,434.49, for the summer 2015 term - $1,443.18, for the fall 2015 term - $3,268.60, and for the winter 2015 term - $2,758.07. [ 26 ] In September 2014, the parties’ middle child returned to live with her mother. [ 27 ] On May 22, 2015, this court allowed Ms. Fraser to serve Mr. Airhart substitutionally with notice of a child support resolution meeting. That meeting did not take place as Mr. Airhart failed to appear. [ 28 ] On June 4, 2015, when Ms. Fraser was unrepresented and Mr. Airhart failed to appear, although properly served, this court gave to Ms.

Fraser sole custody of the two older children of the marriage. The order also stated that, except as otherwise varied by the June 4, 2015 order, the divorce judgment remained in effect. The June 4, 2015 order did not explicitly address child support. [ 29 ] In July, 2015, when both parties were unrepresented, Ms. Fraser brought the current application to set arrears and to change ongoing child support. As a result of a court order, her applications were to be heard on July 29, 2015. On July 29, 2015, when both parties were unrepresented, on an interim without prejudice basis, this court found Mr.

Airhart to have a guideline income of $66,500.00 and required Mr. Airhart to pay Ms. Fraser $1,254.00 for the support of the three children, the oldest of whom was an adult but who was, at the time of the hearing of the application, attending an Alberta university. Although no transcript of the reasons for the order has been provided, it appears that the amount awarded is the amount set in the tables for the support of three children based on Mr. Airhart’s income. No mention in the order is made of s. 7 expenses. This order did not find a guideline income for Ms. Fraser. Ms.

Fraser’s application to vary child support was adjourned to a special chambers hearing on December 1, 2015. These reasons deal with the application heard by me on December 1, 2015. [ 30 ] On her current application, Ms. Fraser indicates that her line 150 income for 2014 was approximately $84,500.00, and for 2013 was approximately $83,590.00. She expected her 2015 income to be approximately $85,000.00. She believed that Mr.

Airhart’s income should be set at approximately $83,738.00 because “he is a fully trained sheet-metal journeyman working at . . . which is a company that allows its employees to pick and choose their hours of work and they get paid by piece work, which allows for a generous income unless a person chooses to not take the work”. [ 31 ] Mr. Airhart’s line 150 income for 2014 is $83,738.00.00 and for 2013 is approximately $47,000.00. According to evidence which he has provided, to the end of June 2015, Mr. Airhart had earned $32,750.80, gross.

He states that he expects his line 150 income for 2015 to be $50,000.00. [ 32 ] A Maintenance Enforcement Program Creditor Yearly File

Summary shows that a Fraser/Airhart account was opened in May, 2015, although Ms. Fraser indicates that she sent a claim to MEP in February, 2015. Ms. Fraser provided the information on which the account was developed. Mr. Airhart was charged with child support obligations of $344.00 per month (the amount of the 2013 order), which amount was claimed every month until November 1, 2015 when the basic child support obligation was increased to $1,254.00 (the amount of the July 29, 2015 order). [The account therefore appears to charge Mr. Airhart for s. 3 support after his oldest child became an adult in 2013.] In July, 2015, $1,547.94 in

section 7 expenses was added to Mr. Airhart’s account. On August 27, 2015, $7,568.00 for “total declared arrears” was added to Mr. Airhart’s account. In September 2015, $466.62 was added to Mr. Airhart’s account. The MEP account shows that, as of November 1, 2015, Mr. Airhart owes $5,403.81 in child support obligations. [ 33 ] The parties’ middle child, who became an adult in December, 2015, is currently attending a high school upgrading program.

b) Background information relating to the Maintenance Enforcement Program in Alberta

[ 34 ] MEP’s website usefully sets out the basis on which it deals with enforcement claims: see extracts from the web-site in Appendix A. On that website, MEP also addresses its ability to enforce s. 7 expense claims: When can MEP enforce expenses? MEP can enforce

Section 7 expenses when the court order/agreement provides for

Section 7 expenses, and says how much each parent should pay for the expense. [ 35 ] The Alberta provisions can be compared, for example, with the Nova Scotia provisions which state: What should a

Section 7 provision include for the MEP to enforce it?

The provision should state • that one party (the payor) pay the other party (the recipient) • the expenses for which the payor must pay (e.g., child care, lessons) • the amount that must be paid • when the payment is due • for ongoing payments: list due date of first payment and when subsequent payments are due (e.g., first of each week or month) • for one-time payment: list due date of the lump sum • who should receive the payment • the end date for either the payment of the expense or the conditions for the payment of the expense [Emphasis added] [ 36 ] In answer to a query directed to the MEP program as a result of the dispute on this file, the court received the following comments from MEP: MEP does not make legal determinations about whether

section 7 expenses will be payable or the amount of such payments, as this is the role of the court. However, MEP must make administrative decisions about how to enforce orders relating to

section 7 expenses. The authority to make such policy decisions flows from

section 5 of the Maintenance Enforcement Act which states, “If the Director considers it practicable to do so, the Director shall enforce a maintenance order that is filed with the Director in the manner the Director considers appropriate.”. . . Most Canadian maintenance enforcement programs outside Alberta enforce

section 7 terms only if they are established as a set monthly amount. . . . MEP will follow specific direction from the court. . . . However, if an order directs that

section 7 expenses be paid based on proportionate shares, but does not specify the nature of allowable expenses, MEP still attempts to give effect to the court’s intention that both parties contribute to special expenses. To deal with those cases, a table of allowable expenses was developed in consultation with legal counsel based on case law and the types of allowable expenses most typically specified in court orders. . . . Creditors registering with MEP are asked to swear an Affidavit of Arrears to list all monies owing to them in the past that have not yet been paid. . . .

Debtors are given 31 days’ notice of any arrears claimed at the point of registration. This allows the debtor time to dispute any charges, pay the charges in full, or make payment arrangements to retire the debt. Where clients disagree with the approach MEP has taken regarding their

section 7 expenses, they have a number of options. . . . MEP also provides clients with referrals to appropriate dispute resolution resources, including mediation. In fact, MEP and the Ministry’s Resolution Services are currently investigating options to increase mediation offerings for resolution of

section 7 disputes. Clients are also advised of their option to have their issues addressed through an application to vary their court order. [Emphasis added] 2. Child support obligations relative to the oldest child [ 37 ] The parties’ oldest child is now an adult attending university full-time, year round. The last time the court made an order for support relative to that child, the child was in high school and was 17 years old. In September 2013, after the child completed high school and became an adult, she enrolled in a non-accredited Bible school in another province.

In September 2014, that child enrolled as a full- time, full-year student at a university in Edmonton. When Ms. Fraser registered with MEP in early 2015, Ms. Fraser claimed various child support obligations relative to that child.

a) MEP has no authority to determine if the oldest child was a “child of the marriage” for child support purposes once the child became an adult. MEP has no authority to determine what contribution the adult child’s father must make to the child’s s. 7 expenses. [ 38 ] When the court last dealt with child support obligations for these parents, the oldest of the parties’ children had not yet reached adulthood. Courts rarely make decisions without a firm factual basis; therefore, it is rare for courts to make decisions that will take effect in the future.

When the court made its assessment of child support obligations in the spring of 2013, it could not be certain what the situation would be relative to the parties’ oldest child in September 2013. Not surprisingly, therefore, the court order did not address, and did not purport to address, what would happen when that child became an adult. [ 39 ] This vacuum cannot be filled by MEP. [ 40 ] When the court last dealt with child support obligations, it did not make any specific orders in relation to s. 7 expenses. Its order was:

5. [Mr. Airhart] shall pay to [Ms. Fraser] his proportionate share, which is 50.14% for additional expenses for the children and [Ms. Fraser] shall pay the balance, which is 49.86% of the additional

section 7 expenses. [ 41 ] An order of this type does not, facially, purport to authorize certain s. 7 expenses. [ 42 ] In some cases it might be argued that MEP could read a non-specific order, such as the one in this case, together with a litigant’s application (formerly referred to as a notice of motion) so as to infer what s. 7 expenses the court might have intended to address.

For example, if the Application asked for $300.00 for a season of recreational soccer and the order referred only to each parent’s obligation to pay a proportion of s. 7 expenses, it might be argued that that court must have concluded that in the circumstances of that case, a one-time $300.00 extracurricular expense was extraordinary. This would be a risky exercise in almost all situations, at least in the absence of a transcript of the judge’s reasons for making any s. 7 order.

It would be risky, in part, because, without any reference either to the basis on which the Guidelines were developed or to the case law on what is “extraordinary”, the imposition of a charge in addition to the s. 3 obligation might not be warranted. In any event, however, that type of analysis cannot even be attempted here where the oldest of the parties’ children was not an adult at the time the last court application was made and no expenses were identified.

In the result, the only fair conclusion which can be reached in the circumstances of this case is that there is a vacuum as to s. 7 expenses. [ 43 ] This vacuum cannot be filled by MEP. [ 44 ] For the reasons set out below in relation to the issue of the guarantee of procedural fairness, I doubt that a court could delegate its authority to make s. 7 decisions to MEP even if it wanted to.

In any event, the Alberta Court of Queen’s Bench has not made any such delegation to MEP. [ 45 ] One aspect of a parent’s challenge to a s. 7 claim may be a challenge to the Guidelines themselves; obviously, this can only be done by a court: Strickland. [ 46 ] With respect, MEP not only cannot, but should not, try to fill vacuums of the sort identified herein: with the assistance of the administration, the court has developed resources and practices in order to assist parties, including self-represented litigants, who have disagreements concerning child support obligations.

Litigants in this court have the benefit of a Family Law Information Centre where parties can obtain information about their rights and obligations, including s. 7 expenses. There is also a child support resolution service, where trained mediators facilitate the resolution of child support disputes once the parties have information about s. 7 expenses. If no mediated resolution is possible, the court and the litigants have the benefit of duty counsel available in morning chambers to give free legal advice to unrepresented parties.

The anterooms to the courtrooms in which dispute child support hearings are held display information about places where self-represented litigants can obtain information. [ 47 ] It is wasteful for MEP to attempt to duplicate the resources already provided by the court.

MEP’s attempts to solve disputes, presumably because of a belief that this will be cheaper and faster than having the parents go to court to resolve their disputes, will merely fragment the administration’s institutional response to parents' needs for information, mediation and representation in child support disputes. [ 48 ] Moreover, by fragmenting government’s response to child support disputes, MEP is depriving the existing court programs of statistical support which might justify hiring additional resources for unrepresented litigants. [ 49 ] In any event, because MEP is an enforcer of child support obligations, it does not have the necessary appearance of impartiality to allow it to become an arbiter of child support. [ 50 ] Finally, because MEP is not an agency which is bound by the Administrative Procedures and Jurisdiction Act , it is not in a position to guarantee procedural fairness, especially to unrepresented litigants.

Although it purports to be exercising a statutory power which can have a material effect on the financial and economic welfare of Alberta citizens, MEP is not required under that statute: to give parents who come within their ambit notice of claims and an opportunity to present evidence and make representations, but, most importantly, to give written decisions and written reasons for their conclusions.

If, in fact, MEP did comply with those administrative requirements, it is obvious that there would be no cost or time saving by choosing MEP adjudication of s. 7 expenses over the court’s adjudication of those expenses. [ 51 ] The only thing which is surprising in MEP’s statement that their equivalent agencies in most other provinces only enforce explicit s. 7 orders is that there are any provinces in which a MEP-like agency has been given authority to make s. 7 decisions. [ 52 ] Part of MEP’s problem is, of course, that we in the legal community have not been helpful in clarifying s. 7 issues.

MEP’s statement that it is intending to interpret and enforce the court’s intention when the court has not expressed an intention underscores the difficulty of its situation. The legal community, including judges and lawyers, must be clear in our s. 7 decisions. There is virtually no point in stating that the parties will share s. 7 expenses according to their respective incomes: that is the fall-back position in the Guidelines.

Moreover, the proportionality provisions of the Guidelines themselves are more useful than a statement in a court order because the principle in the Guidelines will apply over time, even as the incomes of the parties change, as is seen in the background facts of this decision. The only time it would be necessary to address proportionality is when the court decides that the parents will not share s. 7 expenses according to their incomes, but on some other basis. [ 53 ] Nor is it useful for MEP to set out a list of what it considers to be claimable s. 7 expenses: see Appendix A.

Section 7 expenses must be reasonable: what is reasonable for one set of parents may not be reasonable for another.

Section 7 expenses relating to education and extracurricular activities must also be “extraordinary”; here again, what is extraordinary in one set of circumstances would not be in another. MEP has clearly over-reached when it claims that its list of s. 7 expenses “follows

section 7 of the . . . Guidelines”; s.7 does not purport to set any kind of expenses which are always applicable. The most that could be said for MEP’s list of s. 7 expenses is that, after August 1, 2015, lawyers who allow a court order to issue which contains the language quoted in the MEP website, or language similar or parallel to that, are agreeing, on behalf of their clients, with the s. 7 expense categories listed on the MEP website. [ 54 ] MEP’s efforts to assist parents who cannot agree on

section 7 expenses when a court had not determined which are claimable

expenses must be limited to providing clear information about the resources which are currently available in this court and in theProvincial Court to resolve child support disputes. [55] The only administrative decision which MEP could make in this particular case is that child support for the oldest childterminated when that child became an adult and, when the adult child began attending university, that it did not have sufficientinformation to enforce any s. 7 expense obligations.

b) Was the parties’ oldest child a “child of the marriage” for child support purpose from September 2013 to September 2014? [56] Unless the parents agree that, after she became an adult, their oldest child was unable to withdraw from their charge, the courtwill have to decide if, after she became an adult, their oldest child remained a “child of the marriage” for purposes of child support. [57] I advise the parties that the only decision which I have been able to find on that issue is, unfortunately, a decision of my own,Kinshella, which they can find at an electronic database of court decisions from across Canada to which all individuals have freeaccess and on which they can access all of the decisions and statutes referred to in this decision. [58] Although I could not find any other decision relating to attendance at an unaccredited educational institution, there could bejudicial consideration of other potentially similar situations, such as, for example, whether a parent should pay child support for a “gap”year during which the child travels. [59] The parents should also look at the decisions cited under the heading “On the issue of when adult children can withdraw fromtheir parents’ charge” for a better understanding of the approach of the courts when determining if an adult child is still a child of themarriage.

The Hartshorne decision briefly alludes to the possibility of a grace period in this context. [60] If it is determined that the oldest child was a child of the marriage for purposes of child support during the 2013/14 academicyear that she spent outside the province, then, of course, the father is responsible for both s. 3 and s. 7 expenses for that year.

If, on theother hand, it is determined that the adult child could have withdrawn from her parents’ charge during that year, then, any child supportwhich the mother received in relation to that child from September 2013 to September 2014 may have to be taken into account indetermining not only support arrears, but, potentially, ongoing support for that child.

c) What s. 7 expenses is the father required to pay for the period September, 2014 to May, 2015? [61] The weight of the case law is that, generally, parents who can afford it must support those of their adult children who have theability to complete a post-secondary degree to the acquisition of that degree: the principle undergirding that approach is that a first post-secondary degree will enable an adult child to support themselves financially. [62] Therefore, whether or not the parties’ child was a “child of the marriage” for child support purposes during the yearSeptember 2013 to September 2014, it seems clear that the parties’ adult child is a child entitled to support once she began regularuniversity studies in September 2014.

The law contemplates that a child's status for child support purposes can change; if a court were toconclude that the child was not a child of the marriage for child support purposes for the year 2013-14, that does not mean that she couldnot be a child of the marriage for the 2014-2015 school year. [63] As to the father’s ability to pay s. 3 and s. 7 support for that child, Mr. Airhart must put his best foot forward on theapplication and provide the best evidence he can now provide about his actual line 150 income as disclosed on his pay stubs.

If theamount of his actual income is substantially less for 2015 than it had been in past years, then Mr. Airhart will have to provide relevantevidence to support his assertion that his income was only in the $50,000.00 range. [64] With respect to s. 7 expenses for an adult child attending a post-secondary educational institution, after having determinedthat the course of study is a reasonable one, the court must typically make an assessment of what proportion of the s. 7 expenses must beborne by the adult in question.

This assessment is fact-specific, focussing on the means of the parents, the culture of the family in relationto post-secondary education, the adult child’s abilities to earn income as well as to succeed in the educational program. Set out at thebeginning of this decision under the heading “On the issue of an adult child’s contribution to the cost of their post-secondary education”are some decisions with which the parents may want to become familiar before addressing this issue in court.

The Winstanley decisionmay be of particular interest to these parties because it deals with a relatively unusual 5 year program, as is the situation here. [65] When the matter comes back to court, Ms. Fraser who is claiming child support for the adult child should make submissionsand provide any relevant evidence and submissions concerning the reasonableness of the decision to undertake a 5 year program andwhat contribution the parties’ daughter has made to her education. 3.

Child support obligations relative to the middle child [66] I hope that my discussion of the issues relative to the oldest of their children allows the parents to see that, to some extent,similar considerations now apply to their middle child. She has now also become an adult, and she is not yet enrolled in a post-secondaryprogram.

Again I apologize for referring to one of my own decisions, but the parents may find that the issues which I discussed inDubauskas in relation to an adult child who was not in a post-secondary program might at least give them an idea of what circumstancesa court might take into account in making decisions of this type.

The parties are encouraged to seek other decisions as reported inwhich apply to an adult who is in a high school program after having obtained a high school diploma. [67] Because of my reference to my own decisions, I assure the parents that I will not be the judge who will hear the applicationwhen it returns for determination. [68] When the matter comes back to court, Ms. Fraser who is claiming child support for the middle child must address the issuesaddressed in this decision.

Heard on the 1 st day of December, 2015 and the 9 th day of February, 2016 Dated at the City of Edmonton, Alberta this 7 th day of March, 2016. J.B. Veit J.C.Q.B.A. Appearances: Ms. Fraser, on her own behalf Mr. Airhart, on his own behalf

APPENDIX A In mid-2015, Alberta’s maintenance enforcement program published the following information on its web-site: MEP is making some changes to how it enforces

Section 7 expenses.

Section 7 expenses are support amounts payable for a child in addition to the base child support that is payable.

Section 7 expenses are ordered by the court. They can include childcare expenses; medical, dental and other health-related expenses; and health insurance premiums. They can also include extraordinary expenses for educational purposes, post-secondary education and extracurricular activities. Here’s what claimants need to know about MEP’s upcoming changes: 1. If your court order involves a Proportionate Amount Expense clause (for example: “…must pay 50% of

section 7 expenses” or “must pay 50% of childcare, medical and extracurricular expenses”) you need to know: • Effective August 1, 2015 MEP will only enforce claims for expenses paid within the one year period before MEP receives the claim. If you paid for any expenses more than a year ago, and you have not yet claimed these expenses with MEP, please send your claim to MEP as soon as possible.

To make a claim, provide MEP a completed Expenses Report. • Effective August 1, 2015 the name of the child must show on each proof of payment for expenses claimed (if the receipt would not normally include a name, such as on a standard till receipt, the name may be handwritten). • For health-related expenses you must pay the first $100 per child per calendar year on your own, without reimbursement from the other party. This follows

section 7 of the Federal and Alberta Child Support Guidelines. Only the amount paid over that first $100 per child is claimable through MEP. • When your order provides for it, you can claim your child(ren)’s portion of your family health insurance premiums with MEP. • When the order provides for it, MEP enforces expense claims from either party: o If the creditor claims expenses and is owed payment from the debtor, MEP adds the charge to the MEP file for collection in 31 days.

This has not changed. o If the debtor claims expenses and is owed payment from the creditor, MEP deducts the amount owed from any arrears owed to the creditor, and deducts any remaining amount from the maintenance payment owed to the creditor at least 31 days later. This change provides creditors 31 days’ notice of the deduction from the payment they would usually receive. • Effective August 1, 2015 MEP will only enforce expenses paid by the debtor or the creditor. MEP will no longer enforce clients for expenses that a third party originally paid for. 2.

If your court order involves a Proportionate Amount General Expense clause (for example “…must pay 50% of

section 7 expenses….”) you need to know: • A new expenses form and a package of information will be available on MEP’s website by August 1, 2015. This package will include a list of the types of expenses MEP enforces when the court order is not specific . Please review this list prior to claiming an expense. The list follows

section 7 of the Federal and Alberta Child Support Guidelines. [Emphasis added] 3. If your court order involves a Fixed Amount Specific Expense clause for childcare for example “…must pay $50 per month for childcare” MEP will stop charging the ongoing childcare expense when the child turns 12. However, if the claimant provides proof they are still paying for the expense, MEP will continue enforcing it until further notice. In September, 2015, MEP added these comments to its web-site:

Section IV – Ensuring

Section 7 Expenses Are Enforceable 4.1 Enforceable

Section 7 expenses The Federal Child Support Guidelines and the Alberta Child Support Guidelines allow the court to order parents to contribute to expenses in addition to base child support. These expenses are commonly referred to as “Section 7”, “additional”, “special”, or “extraordinary” expenses. MEP enforces the following

Section 7 expenses: •Child care expenses incurred as a result of employment, illness, disability or education or training for employment of the parent/guardian/person who has care and control of the child; •The medical and dental insurance premiums attributable to the child; •Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; •Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; •Expenses for post-secondary education; and •Extraordinary expenses for extracurricular activities.

When the order’s terms for

Section 7 expense are too vague, MEP may decline to enforce the expense. To ensure enforcement, orders should: •State that one party pays the other party; •Specify the type of expense - State the amount payable each month •Name the children for whom the expenses are to be paid; •State the date of the first payment and the date the payment is due every month thereafter; and •State the termination date or conditions for payment of the expenses. The only expenses MEP enforces are those payable to a creditor or a debtor.

When a court order or agreement states a third party (including lawyers) is to be paid for expenses, MEP will not enforce the expense. 4.2 Fixed amounts MEP prefers parties to agree on a fixed or dollar amount for

Section 7 expenses. For example, the debtor pays $100 per month for hockey expenses. Benefits of a fixed amount for

Section 7 expenses include: •Reduced conflict between parties regarding collection of expenses; •No need for MEP to obtain and review proof of payment; •Eliminates the need for MEP to consult with parties; and •Less adjustments to files. Delays in making adjustments may be experienced when MEP staff are asked to review and verify expense receipts provided by creditors. 4.3 Proportionate amounts

Instead of a fixed amount, parties may agree to a proportionate or percentage amount of expenses. For example, the debtor pays 55 per cent of all hockey expenses. The proportionate amount can be provided in the order by: •Specifying the percentage of the expense cost the party must pay; •Listing the guideline income of both parties; and/or •Providing some other mechanism to calculate or determine what proportionate share should be enforced. When an order provides for a proportionate amount, MEP will require the party claiming the expense to submit a completed Expenses Report and proof of payment.

For orders requiring parties to each pay for their proportionate share of expenses, MEP will accept claims from either party. When orders stipulate parties must agree to expenses, MEP enforces only after receiving confirmation from the payor that they agree to the expenses. This confirmation may be provided by either the payor or the claimant. When orders state parties must provide each other with copies of proof of payment for expenses, MEP does not require the claimant to prove they sent proof of payment to the paying party before the Program will enforce. MEP prefers parties to agree on a fixed amount for

Section 7 expenses, rather than a proportionate share. Common issues with proportionate amounts include: •There is often no way of determining from proof of payment that the particular item or activity was specifically paid for the child named in the court order; •When both parties have health insurance benefit plans, there could be disputes about who will pay for the expense up front and who will claim with their insurance provider first; •There could be disputes that items were returned for refund. •It may not be clear that expenses shown on the proof of payment were intended to be

Section 7 expenses; and •There could be disputes that the expense was not necessary for the child, the cost of the expense was not reasonable, or the claimant’s choice of service provider was not reasonable. 4.4 Termination dates for

Section 7 expenses Termination dates and/or conditions of eligibility for

Section 7 expenses should be stipulated in orders.

For example, a clause might state that a particular expense is due only for the months during which the child is enrolled in a particular activity, and may be reinstated when the child recommences the activity. •Where an order is silent on termination dates or conditions, MEP generally does not enforce when the expense is no longer being incurred. •When expenses are specifically identified, and the order sets one fixed amount for all expenses, MEP does not reduce the amount when one expense is no longer incurred. •When an order sets one fixed expense amount for more than one child, MEP does not reduce the amount when enforcement of child support ends for one child.

The full expense amount is charged until enforcement ends for all children named in the order. Last updated 08/24/15