Park v Park, 2016 ABQB 603

Court of Queen’s Bench of Alberta Citation: Park v Park, 2016 ABQB 603 Date: 20161024 Docket: 4803 159927 Registry: Edmonton Between: Jeffrey John Park Respondent - and - Norma Lynn Park Applicant Corrected judgment: A corrigendum was issued on October 26, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. ___________________________ ____________________________ Reasons for Judgment of the Honourable Madam Justice D.L.

Shelley _______________________________________________________ Introduction [ 1 ] Mr and Ms Park entered into Minutes of Settlement (the Agreement) in September 2012, which were incorporated into the Divorce Judgment granted in July 2013. The Agreement provided for, among other things, child support and the payment of s 7 expenses. In December 2015, when their daughter turned 18, Mr Park unilaterally stopped making child support payments and cancelled their daughter’s health benefits with his employer. At the time, the child was still in high school and she is presently enrolled in Grant MacEwan University.

Ms Park now applies to vary guideline incomes and child support, both retroactive to January 1, 2016 and going forward, to vary the guideline incomes and each party’s proportionate share of

section 7 expenses, and increased costs. [ 2 ] Mr Park cross-applied for Judgment for a matrimonial property equalization payment of $41,980.94, plus interest and costs on a solicitor-client basis.

Facts [ 3 ] The parties were married in June 1992, separated in November 2010, and have one child, who was adopted in 2004, when she was six years old. The child has ADHD, ADD, attachment disorder, and poor social skills. [ 4 ] When the child turned 18, Mr Park ceased making any child support payments, asserting that the child was no longer a child of the marriage. [ 5 ] This dispute concerns the proper

interpretation of the Agreement that was incorporated into the Divorce Judgment. The Agreement included the following clauses: 3. (

a) Commencing on September 1, 2012 and on the first day of every month, the Husband shall pay to the Wife child support in the sum of $300.00, payable in two installments of $150.00 on the first and fifteenth of every month. The parties are departing from the Federal Child Support Guidelines as the Wife receives Adoption Permanency Funds for the support of the child. In consideration for the Husband waiving of his right to payment of the equalization payment set out in the within Agreement and the Wife entering into the terms of the within Agreement, the Wife shall not seek child support from the Husband retroactive to January 1, 2012 . (

b) Commencing September 1, 2012, there shall be

Section 7 “add-on” expenses (as defined by the provisions of the Federal Child Support Guidelines, hereafter “the Guidelines”), payable for the children after basic child support becomes payable. The parties agree that they will agree upon any

section 7 expenses prior to the expense being incurred and that consent to incur a reasonable expense will not be unreasonably withheld. Based on the parties’ 2011 income, the Husband’s proportionate share of

section 7 expenses payable shall be 57.01% and the Wife’s shall be 42.99%. The Husband and Wife agree that

section 7 extraordinary expenses include: (

i) Health related expenses that exceed insurance reimbursement by at least $100.00 annually per illness or event, including, orthodontics, counseling, physiotherapy, prescription drugs, hearing aids, glasses and contact lenses, to the extent that these expenses are not covered by a medical/dental plan; .... (vi) Post-secondary education. Any funding that the Wife receives for the child from the Adoption Permanency Fund for extracurricular activities will be first applied to any of the above noted

section 7 expenses and the balance not covered by funding shall be shared proportionately between the parties as noted above. (

c) The Husband agrees that this obligation to pay child support shall bind his estate and that the husband’s estate shall, on the Husband’s death, pay child support in the same amount as the Husband was obliged to pay at the time of his death and for so long as the children remain dependent on the Wife in accordance with the Divorce Act .... (

e) The child shall continue to be covered by the Parties’ respective dental and medical benefits plan, if any, including Alberta Health Care and Blue Cross, for so long as the child remains dependent upon the Parties in accordance with the Divorce Act ... ... 6. (

a) Save and except for the matrimonial home for which provisions have been made in this within Agreement, the parties mutually agree that the matrimonial property has been satisfactorily divided as outlined in the Property Statement ... and that the Husband shall waive his right to the equalization payment of $41,980.94 in consideration of the Wife entering into the terms of the within Agreement. (Emphasis added) [ 6 ] Under clause 5 of the Agreement, the parties also waived any claims for spousal support. [ 7 ] Under the Agreement, the parties agreed to depart from the Federal Child support Guidelines to take into account monthly payments from the Government of Alberta Adoption Permanency Fund (the Fund).

The Fund is used to assist adoptive families to address the special needs of adopted children and their parents. At the time of the Agreement, the Fund payments were approximately $910.00 per month. When they ceased in 2015, when the child turned 18, they were about $1,080.00. [ 8 ] Before the payments ceased, Ms Park advised Mr Park that they would have to adjust his monthly child support, as there would no longer be government funding to deduct from his support obligations.

Mr Park took the position that, once the child turned 18, he would no longer make any child support payments, would not contribute towards s 7 expenses, and would remove the child from his health and dental benefits. [ 9 ] Ms Park applies for the following:

a) An order varying the Divorce Judgment guideline incomes and child support retroactively to January 1, 2016;

b) An order varying the Divorce Judgment guideline incomes and child support to be paid on the first day of each month;

c) An order varying the Divorce Judgment guideline incomes and each party’s proportionate share of s 7 expenses;

d) An order requiring Mr Park to pay his portion of retroactive s 7 expenses;

e) An order requiring Mr Park to keep the child on his employer benefits;

f) An order that the amount owing under any order given in this application be paid to the Director of Maintenance and Enforcement (MEP);

g) An order that child support may be recalculated by the Alberta Child Support Recalculation Program; and

h) Increased costs. Submissions Ms Park’s submissions [ 10 ] Ms Park argues that the child remains a child of the marriage for the purposes of the Divorce Act because, although she is 18, she is under Ms Park’s charge and unable to withdraw from her charge, at first because she was still in high school, and now because she is registered full time at Grant MacEwan University. She notes that there is nothing in the Agreement that indicates that Mr Park’s obligation to pay child support terminated when the child turned 18.

In fact, the Agreement expressly included post-secondary education as a s 7 expense, and that any s 7 amount not covered by the Fund would be payable by both Mr and Ms Park proportionately. [ 11 ] Ms Park asserts that the equalization payment was waived because she agreed not to seek retroactive child support or spousal support and because they agreed to apply the Fund towards what would otherwise have been Mr Park’s child support obligations under the Child Support Guidelines. [ 12 ] Ms Park further argues that, if not for departing from the Guidelines, Mr Park would have paid significantly more.

Initially this was a savings of about $621.00 per month and, by the time he stopped making payments, he was saving $894.00 per month. Mr Park’s submissions [ 13 ] Mr Park asserts that para 3(

a) prohibits Ms Park from seeking child support from him, quoting the following: In consideration for the Husband waiving of his right to payment of the equalization payment set out in the within Agreement and the Wife entering into the terms of the within Agreement, the Wife shall not seek child support from the Husband retroactive to January 1, 2012. [ 14 ] In both written and oral argument, Mr Park argued that this provision means that Ms Park agreed to not seek child support from him in exchange for his forgoing the $41,980.94 equalization payment.

He suggests it makes no sense for him to have “left money on the table” and that Ms Park has benefitted from not having to make that equalization payment. [ 15 ] Ms Park says that the quoted

section does not say that she will not seek child support from Mr Park, but that she will not seek child support retroactive to January 1, 2012 (from the date of separation November 2010 to January 2012). If the intention was that she would not seek support at all, there would have been no need to add the phrase “retroactive to January 1, 2012. [ 16 ] In further support of his argument, Mr Park suggests that he has pre-paid child support by forgoing the equalization payment.

He calculates the amount of the pre-payment as follows: Fund payments to Ms Park $35,556.83 Child support paid by Mr Park $11,950.00 Foregone equalization payment $41,980.94 Total received by Ms Park $89,487.77 Less child support he would have paid Under the child support guidelines $50,360.00 Total overpayment $39,127.77 [ 17 ] This calculation assumes that Mr Park receives full benefit for the Fund payments, as though he had made the payment. It is not clear that these payments should be applied to Mr Park’s obligation to pay child support.

There are two conflicting decisions dealing with how the post-adoption fund benefits apply to child support. The first, KLS v JES , 2010 ABQB 410 , was reported before the parties

entered into the Agreement, while the second, CSH v EMH , 2013 ABQB 660 , post-dates the Agreement. [ 18 ] In KLS , Sullivan J held that the post-adoption benefits were for the benefit of the adopted child and that the payments did not mitigate the payor’s obligation or reduce the amount of child support payable (at para 7). [ 19 ] Further, Mr Park argues that the Agreement only requires him to pay child support while the child is a “child of the marriage” as defined in the Divorce Act and he asserts that the child is no longer a child of the marriage.

He says the child has not contributed to her own post-secondary education, citing the “Farden Factors” set out in Olson v Olson , 2003 ABCA 56 , including that she has not applied for student loans or other financial assistance, and that she did not work full- or part-time during high school or after graduation. [ 20 ] Finally, Mr Park argues that, if the Court orders further child support be payable, then clause 3(

a) of the Agreement cannot remain in effect and he should be entitled to the matrimonial property equalization payment waived under that clause, including interest. He also seeks costs on a solicitor-client basis. Analysis Interpreting the Contract [ 21 ] In my view, the real issue here is the correct

interpretation of the Agreement. The question of how the Courts have treated funds like the Adoption Permanency Fund when deciding on child support is interesting, but not entirely relevant to this application. If anything, the KLS decision may be relevant to surrounding circumstances. The parties did not litigate how to treat the money received under the Fund; they reached an agreement on how to deal with it. [ 22 ] Matrimonial property contracts are to be interpreted using the same principles as other contracts: Holm v Holm, 2013 ABCA 345 at para 8 .

That is, as noted in Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 (at para 47 ), the Court must determine the parties’ intent by reading the contract as whole, giving the words their ordinary and grammatical meaning consistent with the surrounding circumstances known to the parties at the time the contract was formed.

Further, the Supreme Court of Canada (at para 48) noted that the meaning of words can be derived from contextual factors like the purpose of the agreement and the nature of the relationship created by the agreement. [ 23 ] In Holm the Court of Appeal noted that it would be problematic for a Court to interpret a contract based on what is perceived in hindsight to be fair, and the contract should be interpreted as of the time it was entered (para 8). [ 24 ] Mr Park argues that the sentence in clause 3 means that Ms Park agreed not to seek any child support from him.

This approach ignores the last three words at the end of the sentence: “retroactive to January 1, 2012” . Reading the Agreement as suggested by Mr Park renders the ending of the sentence meaningless. [ 25 ] The Agreement expressly states that the parties have agreed to depart from the child support guidelines because of the availability of the Adoption Permanency Funds. But nothing in the Agreement suggests that Mr Park waived his rights to the equalization payment in consideration for Ms Park not seeking any child support at all . [ 26 ] This

interpretation is not consistent with the language of the specific provision or with the language of the Agreement as a whole. [ 27 ] First, waiving the equalization payment is stated to be in consideration for Ms Park not seeking retroactive child support to January 1, 2012 and for entering into the Agreement. [ 28 ] Second, the Agreement clearly contemplates the payment of child support; it would be nonsensical to argue that the Agreement provided for a right to child support that Ms Park could not enforce. Further, clause 3(

c) provides that Mr Park’s estate will continue to pay child support if he dies. [ 29 ] Third, reading the Agreement as a whole makes it clear that the parties intended that, while they were receiving payments from the Fund, Mr Park would not be required to pay the full amount of child support required under the Child Support Guidelines.

This is expressly set out: The parties are departing from the Federal Child Support Guidelines as the Wife receives Adoption Permanency Funds for the support of the child. [ 30 ] In considering surrounding circumstances, I note that the only judicial decision on the issue at the time of the Agreement, KLS , gave no credit to the payor for those funds. [ 31 ] Fourth, clause 6(

a) expressly states that Mr Park waived the right to the equalization payment “in consideration of the Wife entering into the terms of the within Agreement.” [ 32 ] Next, as a result of the Agreement, Mr Park paid $11,950.00 in child support, whereas if the parties had relied on the Child Support Guidelines, assuming no credit for the Fund payments, (the position in KLS ) he would have paid $50,360.00, a savings of over $38,000.00.

The difference between the foregone equalization payment and the savings from paying reduced child support is only about $3,500.00, not the $39,000.00 alleged by Mr Park. [ 33 ] This Court will not enter into deciphering the subjective intentions of the parties at the time of the Agreement; it is necessary to interpret the Agreement as written. Mr Park says that he waived payment of the equalization payment in return for Ms Park not seeking child support from him from January 1, 2012. He interprets this to mean that, in waiving the equalization payment, he was in

effect, pre-paying child support, but that is not what the Agreement said. Ms Park agreed to not seek retroactive child support, not tonot seek any child support. [34] Finally, it is clear from clause 3(

b) that the parties intended that child support would be payable after the child turned 18, as itprovides for the proportionate sharing of post-secondary education as a s 7 expense. I will discuss this further when addressing whetherthe child remains a child of the marriage. At this point in time, it is relevant to note that the parties contemplated the possibility of childsupport obligations after the Fund ceased making payments when the child turned 18. [35] Mr Park argued that clause 3(

a) was ambiguous and, having been drafted by Ms Park’s counsel, should be interpreted contraproferentem. I note that the doctrine of contra proferentem only applies if there is an ambiguity and when “other rules of construction failto enable a court to ascertain the meaning of the words in question” (Canadian National Railway Co v Royal and Sun AllianceInsurance Co of Canada, 2008 SCC 66 at para 74).

It is a “very weak canon of construction to be applied last (if at all), and only whenall other rules have failed” (McDonald Crawford v Morrow, 2004 ABCA 150 at para 64). [36] Mr Park has not identified any ambiguity in the language.

It is clear that the words “retroactive to January 1, 2012” modifythe term that the Wife will not seek child support, and that to interpret the words as suggested by Mr Park is not consistent with the termsof the Agreement as a whole. [37] Further, the doctrine is only applied to situations where the party alleging contra proferentem is in a position of unequalbargaining power, for example in contracts of adhesion (Non-Marine Underwriters, Lloyd's of London v Scalera, 2000 SCC 24 at para70) or where “the non-drafting party had no meaningful opportunity to participate in the negotiation of the instrument” Ironside v.

Smith,1998 ABCA 366 at para 67, citing Hillis Oil & Sales Ltd v Wynn's Canada Ltd, (SCC), [1986] 1 SCR 57. InConsolidated Bathurst Ltd v Mutual Boiler & Machinery Insurance Company, (SCC), [1980] 1 SCR 888, Estey Jnoted that ambiguities are interpreted against an insurer as the “party in control of the contents of the contract” (p 899-900). [38] Here, while counsel for Ms Park drafted the Agreement, both parties were represented by counsel and they negotiated theterms that were incorporated into the Agreement. There is no evidence that Mr Park was unable to participate in negotiating theAgreement.

The doctrine of contra proferentem has no application here. Conclusion [39] I conclude that the Agreement provides that the parties would depart from the Child Support Guidelines while Ms Parkreceived money from the Fund. Now that the Fund has ceased making payments, there is nothing in the Agreement that prevents herfrom seeking additional child support based on the parties’ current income and situation. [40] Mr Park waived his right to the matrimonial property equalization in exchange for Ms Park agreeing to not seek retroactivechild support and for her entering into the Agreement.

The Agreement is not ambiguous, read as a whole and taking into account thesurrounding circumstances. Having concluded that Ms Park may seek additional child support does not render Mr Park’s waiver of theequalization payment ineffective. The waiver was not a “pre-payment” of child support. If anything, it was negotiated as part of theAgreement to not pay the full amount under the Guidelines. I will not order Ms Park to pay the equalization amount.

Is the child a child of the marriage for the purposes of the Divorce Act? [41] Ms Park’s evidence is that the parties agreed during the marriage that they would encourage the child to pursue post-secondary education and to financially assist her if she did so. Mr Park’s only evidence in this regard is that the parties were unable toestablish an RESP during the marriage.

Ms Park noted that the parties were unable to establish an RESP for the child when Mr Parkmade a career change, temporarily reducing his income, but they anticipated that his income would increase and they would then be ableto start an RESP for her. Because of the separation and divorce, that never happened. [42] Ms Park deposed that the child took summer school courses in her last two years of high school to meet the entrancerequirements for a University Bachelor of Arts program and she attached copies of the child’s transcripts for these courses.

The child didobtain a temporary job in the summer after graduation, but it was only short term. Ms Park further deposed that the child will not workduring the school year so that she can focus on her academic performance. The child is taking social work and psychology courses atUniversity because she hopes to work with children. [43] Mr Park noted that he believed the child has not applied for student loans (and he had no evidence as to whether she would beeligible for a student loan) or for other financial assistance. He notes that the child does not work and does not pay her mother room andboard.

He further deposes that his relationship with the child deteriorated after the parties’ separation and that they do not have arelationship. [44] The Court in Olson summarized factors the courts consider when determining whether a child should be supported duringtheir post-secondary studies (at para 18): 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 collegebecause 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 a relationship from the parent from whom support is sought. [ 45 ] Unlike the child in Kohan v Kohan , 2016 ABCA 125 , who was nineteen and still pursuing high school from a home schooling organization, having obtained only 48 of the necessary 100 credits, this child has established that she was in high school full time and taking summer school courses to, successfully, improve her grades and improve her chances for receiving admission into university.

In my view, there is no doubt that she was a “child of the marriage” “unable to withdraw” from her parents’ charge while she attended high school. The Court of Appeal in Kohan (at para 18 ) “noted that most teenagers will graduate from high school by the time they are 18 or 19” and that deviations from that timeline may call for an explanation. Here, the child graduated within the timeline. [ 46 ] As a result, Ms Park is entitled to retroactive child support of $1,194 per month for the months January 2016 to June 2016, for a total of $7,164.00. [ 47 ] As to the factors regarding post-secondary education:

a) The child is enrolled full time in a University program.

b) The child has not applied for any financial assistance. There is no evidence before me of her eligibility for student loans or scholarships.

c) Ms Park’s evidence is that the child is pursuing psychology and social work courses because she wants to work with children, reflective of her early difficult life.

d) Ms Park’s evidence is that the child has some learning problems (ADD and ADHD) and that she will not be working during the school year so that she can focus on her academic work. She did not work during the summers while in high school so that she could improve her grades in summer school. She worked at a temporary job during the summer after graduation.

e) The child is 18 and has not delayed either her high school graduation (as in Kohan ) or entrance to University.

f) The child has demonstrated her ability to achieve grades sufficient to be granted admission to the Bachelor of Arts program and her summer school grades demonstrate a willingness to work to improve her grades.

g) Ms Park’s uncontradicted evidence is that the parties intended to financially assist the child in post-secondary education, and that they were unable to establish an RESP for her during the course of the marriage because Mr Park chose to change careers and then because of the marriage breakdown. Further, the Agreement expressly provides that post-secondary education will be a s 7 expense.

h) Mr Park’s evidence is that his relationship with the child deteriorated, but there is no evidence on whether that deterioration was unilateral. [ 48 ] Overall, these factors favour finding that the child remains a child of the marriage and that she is unable to withdraw from their charge. The parents contemplated encouraging her to attend post-secondary education while they were married and they intended to provide financial assistance. The Agreement expressly provided that the costs of post-secondary education would be apportioned as a s 7 expense.

The child has worked hard to gain admission to university, including attending summer school to upgrade for admission. [ 49 ] In oral argument Mr Park’s counsel suggested, and then withdrew the suggestion, that the child was getting “a free ride” because she did not work and was not paying room and board. The child has overcome significant personal and educational issues to reach this point, and she should hardly be blamed for focussing on educational achievements, particularly in light of her learning difficulties.

While the child and Mr Park’s relationship has deteriorated, that is not sufficient to find that she has unilaterally withdrawn from the relationship or that Mr Park should not fulfill the obligation to assist her in post-secondary education. [ 50 ] I conclude that the child is a “child of the marriage” while attending university full time, and Ms Park is entitled to child support in the amount of $1,194.00 per month for each month the child is attending university full time.

That means that Ms Park is entitled to retroactive child for the months of September and October 2016, totalling $2,388.00. [ 51 ] The child will not be expected to work while enrolled in a full-time program, but during the spring/summer break, if she is not attending school, she will be expected to seek employment. Child support will not be payable when the child is not enrolled in a full time post-secondary program, therefore there is no child support payable for the months of July and August

Section 7 expenses Post-secondary tuition and expenses [ 52 ] I have concluded that the child is a child of the marriage. The Agreement expressly provides that post-secondary education will be a s 7 expense. The child will contribute one half of any earned net income towards her University expenses (tuition and books), and the balance of tuition and books remaining will constitute the s 7 expense. Mr Park is required to contribute to these costs based on each party’s proportionate share as evidenced by their up to date income.

[ 53 ] Mr Park must contribute towards the tuition and books cost already incurred under the above formula. That is, the child will provide evidence of her income last summer and one half of that will be credited towards the 2016-17 tuition and books. Mr Park will then be responsible for his proportionate share of the difference. [ 54 ] Going forward, Mr Park is entitled to receive copies of the child’s paycheques at the end of the summer in order to make these calculations for the upcoming school year. Health Benefits [ 55 ] Mr Park will reinstate the child on his employer’s health benefits plan as expressly contemplated by clause 3(

e) of the Agreement. He will submit the incurred orthodontic and prescription expenses to his insurer and remit the funds to Ms Park. If the insurer refuses payment because the child was not enrolled in benefits at the relevant time, Mr Park will personally pay these amounts.

Costs [ 56 ] Clause 23 of the Agreement provides that “... should either party be required to sue the other party to enforce the terms of this agreement, that person shall be entitled to solicitor/client costs.” Counsel for Mr Park suggests that because Ms Park’s Family Application does not seek solicitor/client costs, but “increased costs”, she cannot now seek them. [ 57 ] I disagree. First, costs are always in the Court’s discretion. Second, the Agreement expressly contemplates solicitor/client costs.

Third, Mr Park cannot complain that he was prejudiced and surprised by the application, as he himself sought solicitor/client costs in his cross-application. He had effective notice; see Alberta Permit Pro v Booth, 2008 ABQB 167 , at para 42 ; Brown v Silvera, 2010 ABQB 224 at para 25 . [ 58 ] Finally, Mr Park unreasonably decided to cease paying child support and take his daughter off his benefits plan when she turned 18, even though she was still in high school. He failed to respond to repeated correspondence from Ms Park and Ms Park’s lawyer. He insisted on an

interpretation of the Agreement that cannot be rationally supported by the actual language of the Agreement. And the parties ended up having to come to an expensive Special Chambers application. [ 59 ] I award Ms Park solicitor/client costs as provided for in the Agreement. Conclusion [ 60 ] I order the following:

a) Retroactive child support of $1,194.00 a month for January –June 2016 and September and October, 2016.00 totalling $9,552.00;

b) Ongoing

section 3 child support payable on the first day of each month at $1,194.00 per month;

c) Contribution to past and future

section 7 expenses, including orthodontic treatment, prescriptions, and the cost of tuition and books in a post-secondary educational program commencing in September 2016;

d) Reinstating and maintaining the child on Mr Park’s medical and dental benefits while she is enrolled full time in post- secondary educational program;

e) An order that the amount owing under any order given in this application be paid to the Director of Maintenance and Enforcement (MEP);

f) An order that the child support may be recalculated by the Alberta Child Support Recalculation Program; and

g) Solicitor/client costs. Heard on the 30 th day of August, 2016. Dated at the City of Edmonton, Alberta this 24 th day of October, 2016. D.L. Shelley J.C.Q.B.A. Appearances:

Mr Darren W. Moroz Darren W. Moroz Professional Corporation for the Respondent Ms Jennifer E. Lamarre Venture Law Group LLP for the Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice D.L. Shelley _______________________________________________________ Ms. Lamarre represents the Applicant and Mr. Moroz represents the Respondent.