Lalonde v Lalonde, 2016 ABQB 600

Court of Queen’s Bench of Alberta Citation: Lalonde v Lalonde, 2016 ABQB 600 Date: 20161025 Docket: 4803 149597 Registry: Edmonton Between: Paul Richard Lalonde Plaintiff - and - Lisa Maria Lalonde Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the Father (payor) to end all of his child support obligations as of his son’s 18 th birthday.

The Father’s application is opposed by the Mother who seeks to have child support for the child of the marriage continue unchanged even though the child is now of the age of majority. [ 2 ] The Father’s position is that based on the Affidavit evidence before me, had the child remained in school fulltime for the remainder of the 2014/15 school year he would have completed grade 11; and had he taken fulltime courses in the 2015/16 school year, he would have completed grade 12 just prior to turning 18. [ 3 ] Instead the child is registered for only one grade 11 course, and only achieved five credits for the entire school year 2014/15.

The Father notes that his son is currently only registered in one grade 12 course for the 2016/17 school year, and that if successful he will only achieve five credits in the current school year. Based on the learning plan provided by the Mother, the father predicts that it will take his son seven years to graduate from high school if he continues to earn only five credits per year, at which point he will be 24 years of age. The Father also notes that his son is Metis and is therefore entitled to benefits such as access to educational funds, and preference for employment opportunities.

[4] The Mother concedes that the son did interrupt his high school studies for a period of time prior to his turning 18 years ofage, but submits that the son is now back on course and determined to complete his high school.

She argues that the present studies thatthe son is enrolled in are considered by the Edmonton Public School Board to be a fulltime course of studies, something that isconfirmed in her Affidavit by the School Board. [5] In Alberta, our Court of Appeal has held that the Farden factors are helpful considerations in determining whether a childremains a child of the marriage, but they do not represent an exhaustive list and not all must be satisfied before a Chambers Judge canconclude that the child remains a child for purposes of the Divorce Act R.S.C. 1985, c. 3: Dorey v Dorey 2011 ABCA 192.

The Farden Factors [6] The Farden factors are discussed in greater detail by our Court of Appeal in Olsen v Olsen 2003 ABCA 56 as follows atparagraphs 11 to 18: 11

Section 2 of the Divorce Act defines child of the marriage as a child of two former spouses who, at the material time, (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from theircharge or obtain the necessaries of life. [emphasis added] 12 The definition under the Divorce Act, 1967-68 (Can.), c. 24, for present purposes, was very similar. 13 It is clear that the onus to prove that a child is a child of the marriage rests on the party who seeks maintenance for a child over theage of majority: Whitton v. Whitton (1989), (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.).

The central question iswhether, on this record, the term other cause includes Christophers pursuit of sports training, so that he is unable to withdraw from hismothers charge or obtain the necessaries of life. An underlying issue is whether evidence is required and whether judicial notice can beemployed in this case to answer the above question. 14 Although the language other cause could be narrowly interpreted under the doctrine ejusdem generis, that proposition has longsince been rejected.

The term other cause is to be interpreted broadly: "When a child that is capable of further benefit froman education or other special training which willfit her for an occupation in later years, such aneducation or course of training should be looked upon as inthe nature of a necessary of life.[emphasis added] Re C and C (1970), (AB CA), 14 D.L.R. (3d) 477 at 479 (Alta.

S.C.A.D.) 15 The courts have recognized that, in determining whether a child is a child of the marriage, the line is to be drawn at such point asthe Court granting a decree nisi of divorce thinks it just and fit to draw it in all the circumstances of the particular case at issue, havingdue regard to the conduct of the parties and the condition, means and other circumstances of each of them: Jackson v.

Jackson, (SCC), [1973] S.C.R. 205 at 218. 16 There have been many decisions at the trial and appellate levels concerning whether a child who is pursuing post-secondaryeducation is still a child of the marriage: Re C, supra; Wahl v. Wahl (2000), 2000 ABQB 10 , 257 A.R. 212 (Q.B.); Farden v.Farden (1993), (BC SC), 48 R.F.L. (3d) 60 (B.C. Master); Darlington v. Darlington (1997), (BCCA), 32 R.F.L. (4th) 406 (B.C.C.A.).

The cases have recognized that post-secondary education can be generally beneficial to childrenand that, in some circumstances, children of separated families should continue to receive financial support in this regard. This isnotwithstanding the fact that parents in non-separated families do not have a legal obligation to support their adult children while theypursue post-secondary education. Some parents do so willingly; others do not. 17 Perhaps in recognition of the above jurisprudence, s. 7(1)(

e) of the Federal Child Support Guidelines, SOR/ 01-292, contemplatesthe costs of post-secondary education being treated as a special or extraordinary expense. Section 7(1)(

d) also permits payments for anyother educational programs that meet the childs particular needs.

Of course, the Guidelines can only come into play if a child is found tobe a child of the marriage. 18 Among the factors that trial courts have taken into account in determining whether adult children should be supported during theirpost-secondary studies are: (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 becausethere 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 childs 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 a relationship from the parent from whom support is sought. Analysis 1.

Whether the child is in fact enrolled in a course of studies and whether it is a fulltime or part-time course of studies [ 7 ] Applying the Farden factors in this case primarily involves a determination as to whether the son is enrolled in a course of studies and whether it is a fulltime or part-time course of studies. The Father acknowledges that the son is enrolled in a course of studies but submits that it clearly not a fulltime course of studies.

The Lead Teacher however verifies on September 15, 2016 that the son is registered in the Edmonton Public Schools Outreach Program at the Learning Store for the 2016/17 school year, and that the Learning Stores are considered “fulltime high school programs by Alberta Education”. [ 8 ] Given this evidence it is reasonable for me to conclude that the son is enrolled in a fulltime high school program for the 2016/17 school year, notwithstanding the Father’s argument that this program if it continues at the rate it presently is will require several more years before the son completes high school.

It is not clear from the evidence before me how long it will take the son to complete high school, but I conclude that at least for the 2016/17 school year that the son must be considered a fulltime student. 2. Whether or not the job was applied for or is eligible for student loans or other financial assistance [ 9 ] The Father points out that because the son is Metis, he is eligible for student loans, other financial assistance, and assistance in finding employment. However because the son is still in high school, his out-of-pocket expenses for his education costs should be minimal.

Accordingly the son’s eligibility for financial assistance is not really relevant in this case since his actual financial outlays for his education should be minimal, although neither party addressed the actual costs of education. 3. The career plans of the child [ 10 ] Based on the Affidavit evidence before me, it does not appear that the son has any specific career plans other than to complete high school. Given that the son is still in high school it seems reasonable to me that he would not necessarily have any career plans until he is able to complete high school. 4.

The ability of the child to contribute to his own support through part-time employment [ 11 ] The son has had part-time employment and continues to be open to part-time employment, but this part-time employment appears to be insufficient for him to contribute in any meaningful way to his own support. 5. Age of the child [ 12 ] The son has only turned 18 as of September 2016, so the age of the child would tend to support a finding of continued child support. 6.

The child’s past academic performance [ 13 ] It is acknowledged by both parties that the son had dropped out of school essentially for a period of time prior to the current school year, and that his past academic performance had been shaky as he approached the age of majority. However more importantly the son is demonstrating some success in his present course of studies, and demonstrates an intention to continue with that course of studies. 7.

What plans do parents make with the education of their children, particularly during cohabitation [ 14 ] There is nothing meaningful before the Court that explains what plans the parents made during their cohabitation for their son’s education.. 8. In the case of the mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought

[15] We are not dealing with a mature child, but one who has just reached the age of majority. There is no evidence before me thatthe relationship between the Father and son was ever unilaterally terminated by the son. The son lived with the Father during the timewhen his studies became disrupted, and currently resides with the Mother. The Mother seems to thinks that that has something to do bothwith the son’s prior problems with his studies, and his current determination to complete high school, but those assertions are difficult toevaluate.

Conclusion [16] In PT v RB 2004 ABCA 244 our Court of Appeal decided at paragraph 39 that the evidence need not speak to each of theFarden factors in order for the adult child to remain a child of the marriage. The key factor is whether the child is “dependent”: 39 The evidence need not speak to each of these considerations in order for the adult child to remain a child of the marriage: seeDarlington v. Darlington (1997), (BC CA), 99 B.C.A.C. 134. What is key is whether the child is dependent:Darlington at para. 16; Wahl at para. 30, Tapson v. Tapson.

Where the child has indicated total independence, for example, bycohabiting with someone, it may be that the child is no longer considered a "child": Vandervort v. Brettler (1989), (ON SC), 22 R.F.L. (3d) 160, (Ont. H.C.), aff'd [1997] O.J. No. 1316 (Ont. C.A.). On the other hand, it is not necessary that the childresides with the parent as long as the child has not removed him or herself from the parent's charge: Bates v. Bates.

When a child isdependent is to be determined in all of the circumstances of the particular case: Jackson at 218. [17] As such, it is clear that this child resides with the mother and has not removed himself from his Mother’s charge. The child is“dependent” in the circumstances of this particular case and as such is entitled to child support, in the same amount that was previouslybeing paid by the Father prior to the child turning 18 in September 2016. [18] The Father’s application to end child support as of September 2016 is dismissed.

However given my Farden factors analysisin this case there is some question in my mind as to the son’s actual long term commitment to maintaining his studies, whether they arefulltime or part-time. [19] As such, as case management Judge, I will review this matter again after the current school year, in October 2017 in order todetermine what progress the child made during the course of the 2016/17 school year, and what his intentions are going forward.

At thattime in October 2017, this issue of child support may have to be adjusted or re-determined depending on my analysis at that time of theFarden factors, and whether in the circumstances of this case, the child remains “dependent”. Heard on the 12th day of September, 2016. Dated at the City of Edmonton, Alberta this 25th day of October, 2016. Donald Lee J.C.Q.B.A. Appearances: Brook S. Mishna Mishna Briere & Oehm LLP for the Plaintiff Lisa Maria Lalonde Self-Represented Litigant