SLF v JWF, 2016 ABQB 635

Court of Queen’s Bench of Alberta Citation: SLF v JWF, 2016 ABQB 635 Date: 20161114 Docket: 4801 103233 Registry: Calgary Between: SLF Respondent/Applicant/Plaintiff (the Mother) - and - JWF Applicant/Respondent/Defendant (the Father) Corrected judgment: A corrigendum was issued on December 19, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.C.

Erb _______________________________________________________ [ 1 ] The parties both seek retroactive orders related to support for their children in circumstances arising from and following the granting of a Consent Corollary Relief Variation Order (the 2008 Order) eight years ago. At that time, there were two children of the marriage as defined in the Divorce Act , RSC, 1985, c 3 (2nd Supp).

[ 2 ] Specifically, the Father seeks a retroactive variation of child support, an adjustment of arrears and retroactive support for the older daughter payable by the Mother. He seeks a variation of the 2008 Order in an amount commensurate with the Federal Child Support Guidelines , SOR 97-105 (the Guidelines ) based on his actual income and the status of the two children [ 3 ] The Mother in a cross application seeks ongoing support for the younger daughter on the basis that she remains in her household and is attending university. She also seeks outstanding arrears that have accumulated under the 2008 Order.

Issues [ 4 ] Based on the remedies sought by each party, the remaining issues are these: 1. Whether the Father is entitled to retroactive support for the older daughter; 2. Whether the Father is entitled to a retroactive recalculation of support paid for the younger daughter on a retroactive basis; 3. Whether the Mother is entitled to ongoing child support for the younger daughter; 4.

Whether the arrears under the 2008 Order be varied. [ 5 ] In addition, there is an issue about this Court’s jurisdiction to deal with the Father’s application and an underlying issue related to at what point the daughters were or continue to be children of the marriage. Legislative Framework [ 6 ]

Section 15.1(1) of the Divorce Act (the Act ) enables a court to grant a child support order, and states as follows: A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. [ 7 ] The definition of “child of the marriage” appears in section 2(1) of the Act : A 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 from their charge or to obtain the necessaries of life. [ 8 ] Section 17(1) enables a court of competent jurisdiction to make an order varying, rescinding or suspending, prospectively or retroactively a support order or any provision thereof on application by either or both former spouses. [ 9 ] Section 17(4) of the Act states that before the court grants a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Preliminary Issue on Jurisdiction [ 10 ] The Mother seeks dismissal of the Father’s application for a retroactive variation of the 2008 Order on the basis that this Court does not have jurisdiction to retroactively vary the 2008 Order because the older daughter was no longer a “child of the marriage” at the time his application was filed. [ 11 ] She relies on the Supreme Court of Canada’s decision in DBS v SRG , 2006 SCC 37 , and on the Alberta Court of Appeal’s decision in Calver v Calver , 2014 ABCA 63 . [ 12 ] Whether a superior court has jurisdiction to order retroactive child support pursuant to the provisions of the Act is presently an unsettled legal question.

In DBS at para 88-89 , the Court held that in retroactive applications brought under s. 15(1) of the Act seeking greater amounts of child support, the child in question must be a “child of the marriage” at the time the application is brought. However, DBS does not specifically apply that requirement for variation applications brought under s. 17 of the Act . [ 13 ] The Court appears to have left the issue open regarding whether a court has jurisdiction to make “truly retroactive orders” under s. 17 of the Act .

In particular, “orders that enforce obligations that payor parents did not have at the relevant time”: DBS at para 71 . [ 14 ] Here, there were obligations at the relevant time but the circumstances evolved differently than originally contemplated by the parties.

In any event, the Supreme Court has left it open to judges hearing such applications to exercise their discretion whether to vary the original order retroactively in appropriate circumstances. [ 15 ] Some courts have exercised this discretion concluding that the jurisdictional requirements prescribed under s. 15(1) of the Act do not apply to variation applications brought under s. 17 : Buckingham v Buckingham , 2013 ABQB 155 at para 32 , followed in Lemay v Longpré , 2014 ONCS 5107 and in Catena v Catena , 2015 ONSC 3186 , 2015; George v Gayed, 2014 ONSC 5360 .

[ 16 ] Accordingly, I find that this Court has jurisdiction to hear applications framed in s. 17 of the Act and this Court may grant a retroactive variation order if the circumstances are found to be appropriate. [ 17 ] Before considering the remaining issues, some context drawn from the evidence is necessary as well as a

summary of the position of each party. Factual Narrative [ 18 ] The parties were married in October 1991 and divorced in June 1999. The parties have two children, both daughters, born in 1992 and in 1997. [ 19 ] The original “Divorce Judgment and Corollary Relief Order” was varied in 2008 when the parties filed a consent order varying the child-related provisions. [ 20 ] The 2008 Order granted the Mother sole custody of the two children and ordered the Father to pay $1,497 in monthly support as long as they remained children of the marriage as defined by the Act . Pursuant to the 2008 Order, the Father was responsible for 62% of

section 7 expenses including health-related expenses that exceeded insurance reimbursements and expenses for post-secondary education. The Mother was responsible for the remaining 38%. This was based on anticipated guideline incomes of $105,000 (Father) and $60,000 (Mother). No variation applications were filed by either party until the present proceedings. Over the years, neither party complied with the 2008 Order requiring them to exchange their income tax returns and Notices of Assessments. [ 21 ] The parties have a long litigation history involving parenting of their daughters, both now young adults.

Communication between the parents has been a challenge and their relationship has further deteriorated. Common sense dictates that the toxic relationship of the parents has affected their relationships with each of their children. It has also affected the relationship between the children themselves. [ 22 ] The Father blames the Mother for limiting or interrupting his access to the children over the years since the date of separation. He has been able to re-establish a relationship with the older daughter but has had little contact with the younger daughter since 2010.

He says that he has made efforts to establish a relationship with her. It is the Mother’s view that the Father is solely to blame for his loss of a relationship with the younger daughter. [ 23 ] In May 2010, the older daughter stopped residing with her mother following an emotional blow up between them. The older daughter has not had any contact with her mother since. After leaving her mother’s home, the older daughter stayed at the home of her boyfriend’s parents for a few weeks and continued to attend high school. Her high school counsellor helped her to get into a shelter for homeless teenagers.

She graduated from high school. She reconnected with her father and moved in with him in August 1, 2010, and continued there until October 25, 2010. [ 24 ] In the fall of 2010, she enrolled at Mount Royal University (MRU). She lived partly in residence and partly in a room and board accommodation until the winter semester 2012. Since May 2012, she has been living in a rental accommodation with her boyfriend. There is affidavit evidence of both the older daughter and her father stating that he financially supported her while she was attending MRU.

There is no evidence to the contrary. [ 25 ] In the fall of 2010, the older daughter’s MRU counsellor referred her to an eating disorder clinic because of her struggles with anorexia. The older daughter started weekly sessions at the clinic and was advised by her doctor to reduce her course load to a maximum of three per semester during her treatment. While enrolled at MRU, she also followed her counsellor’s advice and took additional courses to improve her high school grades to enable her to be admitted to the social work program. The older daughter started that program in the fall of 2013.

In April 30, 2015, the older daughter graduated from MRU with a Social Work Diploma. She worked part time from 2010 to 2015 while a student and is now working full time and is independent. [ 26 ] The younger daughter was still living with their mother when the cross application was filed for her support. The younger daughter graduated from high school and may have commenced post-secondary education at MRU in September 2015.

This has not been confirmed by evidence in these proceedings. [ 27 ] The Father paid child support to the Mother for both children in accordance with the 2008 Order until June 2010 when he discovered that the older daughter was no longer living with her mother. On July 1, 2010, the Father reduced the payments to the Mother to support for the younger daughter only. He supported the older daughter directly. The Mother did not contribute to the older daughter’s support after the older daughter stopped living in her home. [ 28 ] The Father was employed as an electrical engineer until February 25, 2014.

He then lost his employment. He received a severance package of $88,969, which extended his income until the end of November 2014. In December 2014, he started receiving monthly Employment Insurance (EI) payments. He has been unsuccessful in finding a new position. His total income for 2015 was $13,706. He submits that he is no longer receiving EI payments, has no income, and is living on his retirement savings. [ 29 ] On March 6, 2015, the Mother registered the 2008 Order with the Maintenance Enforcement Program (“MEP”) seeking its enforcement for the younger daughter’s support.

She submits that the 2008 Order remains valid despite the fact that the Order contemplated two dependent children residing with the Mother and based on agreed upon incomes earned at that time. She seeks ongoing support for the younger daughter and claims $25,089 in outstanding arrears calculated from the date of the 2008 Order. [ 30 ] On June 5, 2015, MEP garnished the Father’s bank account. The proceeds of that garnishment, $9,768.22, are presently held by MEP until further order of the court. MEP subsequently garnished $1,371 from the Father’s 2015 income tax refund.

Those funds are presently being held in the Mother’s lawyer’s trust account. As a result of an Order granted on April 8, 2016, MEP ceased all enforcement proceedings against the Father for arrears of child support, arising from the 2008 Order.

Summary of the Father’s Position [31] The Father The Father is presently 55 years of age. He filed his application on June 26, 2015, for the following relief: (

i) a variation of the 2008 Order in accordance with his actual income and status of the children retroactive to May 2010; (ii) an adjustment of the arrears claimed arising from the 2008 Order and the release to him of all the garnished funds; and (iii) costs of the application. [32] It is the Father’s position that from 2010 to 2015, he overpaid the Mother for the younger daughter’s support by at least $25,090, based on his actual income.

He also states that he supported the older daughter during her studies at MRU and paid $ 27,745.53for post-secondary education, for which he did not receive any contribution from the Mother. He claims the Mother has been seekingenforcement of the 2008 Order well aware that circumstances have changed and as a result it should not be enforced. [33] The Father submits that he currently has no employment income and no ability to assist the younger daughter through herpost-secondary education. In his view, the Mother has the means to support the younger daughter.

Also, the Mother has receivedoverpayments for child support. It is the Fathers understanding that the older daughter may not have been a child of the marriage whenhe brought his application. However, he asks this Court to consider his substantial overpayments when determining, on an equitablebasis, the issue of support for the younger daughter.

Summary of the Mother’s Position [34] The Mother is presently 56 years of age. She seeks the following relief: (

i) an order deeming the total outstanding arrears for the younger daughter’s support arising from the 2008 Order to be$25,089, and directing the release to the funds MEP garnished from the Father; (ii) an order imputing an income to the Father commensurate with his 2014 guideline income of $113,398; (iii) ongoing support for the younger daughter at $987 monthly for s. 3 and s. 7 expenses set at 52.22% commencing July 1, 2015and continuing for as long as the younger daughter is a child of the marriage. [35] She submits that the older daughter is over 18 years of age and has been living as an Adult Interdependent Partner.

She relieson s. 49(1) of the Alberta Family Law Act. The Mother also claims that she was not aware that the Father was providing support for theolder daughter and in any event he did not seek her consent for the education expenses he paid. It is the Mother’s position that the olderdaughter’s school expenses are not reasonable because it took her five years to complete a two-year program.

The Mother also states thatthe older daughter did not make reasonable contributions to her own education contrary to s. 49(4) of the Family Law Act. [36] The Mother’s argument arising from the provisions of the Family Law Act fails since the parties were married and thereafteracquired a Judgement for Divorce and Corollary Relief Order. The Divorce Act is the governing legislation in these proceedings. TheFamily Law Act has no application. [37] The Mother takes the position that the Father is voluntarily unemployed.

For that reason, she asks the Court to impute incometo him commensurate with his 2014 guideline income for the purposes of the younger daughter’s support. Analysis of the Issues 1) The Father’s Claim for Retroactive Support for the Older Daughter [38] The older daughter is presently 24 years old and employed full time. Both parties agree that the older daughter is no longer achild of the marriage and not entitled to ongoing support. She has completed her education and is employed in her field of study.

Thecase law discloses that the question whether the Father is entitled to retroactive support for the older daughter depends on (

i) whether theolder daughter was a child of the marriage while pursuing her post-secondary education, (ii) whether the court has jurisdiction to awardretroactive support for the older daughter, and (iii) whether an order for retroactive support is justified under the circumstances. (

i) Was the Older Daughter a child of the marriage while pursuing her post-secondary education? [39] It is a general legal presumption that a child under the provincial age of majority (age 18)is entitled to support.

Upon attainingthe age of majority, the child is no longer presumptively entitled to support unless the child remains financially dependent on the parentfor reasons recognized under the Divorce Act: Shelley v Russell, 2012 ONSC 920; Chaulk v Avery, 2009 NLTD 185; Ethier vSkrudland, 2011 SKCA 17; TS v GC, 2013 NBQB 358. [40] The pursuit of post-secondary education qualifies as “other cause” under the definition of “child of the marriage”: Montalto vMontalto, 2011 ABQB 574).

A court has broad discretionary powers under sections 15.1 and 17 of the Divorce Act to determine whetherchild support should be ordered to facilitate post-secondary education: Farden v Farden (1993), (BC SC), 48 RFL(3d) 60 (BCSC). In determining whether the pursuit of education is a valid reason for continued dependence, a court must consider two

issues. Firstly, whether the child’s educational pursuits are reasonable considering all of the child’s circumstances: Bobyn v Bobyn,2014 BCSC 1441 at para 41, citing Nordeen v Nordeen, 2013 BCCA 178. Relevant factors include: (

i) the age of the child, (ii) his orher academic achievements, (iii) career plans, (iv) ability to contribute to his or her own support, (

v) the ability to profit from furthereducation, (vi) inexperience and lack of job training; and (vii) the possibility of securing employment having regard to the standard ofeducation already achieved and the state of the labour market: Farden; Holland v Holland, [2007] AJ No 1350 (QB); BLP v DAP, 2014ABQB 89. [41] Secondly, a court must consider whether it is appropriate for the parents to finance the child’s pursuit of education. Relevantfactors include: (

i) the capacity of the parents to bear the costs of a college education for a child who evinces an aptitude for it, and (ii)whether the child could have reasonably expected one or both of the parents to have continued to provide support if the marriage had notbroken down: Montalto v Montalto, 2011 ABQB 574; Holland v Holland, [2007] AJ No 1350 (QB); Bobyn v Bobyn, 2014 BCSC 1441at para 41; citing Nordeen v Nordeen, 2013 BCCA 178. [42] The older daughter was 18 years old when she graduated from high school with no training that would allow her to becomeemployed and self-sufficient.

Her goal was to become a social worker; this required college education. She enrolled at MRU with aspecific career plan. She started her studies and worked seriously towards realistic goals with the assistance of her university counsellorat MRU. She earned a diploma in social work and her name was on the Dean’s Honour Roll in her final year of studies. Her diplomahelped her secure her present employment in her field. [43] Both parties appear to rely on the assumption that the older daughter could no longer be considered a child of the marriageafter she graduated on April 30, 2015.

However, a child does not automatically stop being a child of the marriage at the moment ofgraduation. A grace period may be necessary if the child is not able to find a job immediately and requires some time to become self-sufficient usually by finding employment: LRP v BJP, 2013 ABQB 685 at para 54. [44] The date the older daughter became financially independent is critical in determining whether she was still a child of themarriage when the Father brought his first application seeking a variation of the 2008 Order. That application was filed on June 26,2015, two months after older daughter’s graduation.

The evidence indicates that older daughter had been working part time since 2010and required her father’s financially support, but by February 2016 she was working full time. [45] In addition, the Father’s position on the issue of when he stopped supporting older daughter is not clear. In his affidavit filedon June 26, 2015, he stated that he was still financially supporting older daughter; she was employed part time and actively seeking fulltime employment.

However, in his affidavit filed on February 26, 2016, the Father stated that older daughter was now employed full timeand he had supported her until April 2015. [46] If older daughter actually became financially independent upon graduation, then she was no longer a child of the marriagewhen the Father brought his first application.

However, the evidence suggests that the Father was not clear in his affidavit filed onFebruary 26, 2016 because he had either underestimated or assumed that older daughter could no longer be considered a child of themarriage after she graduated, despite the fact that the law may be interpreted otherwise based on circumstances.

His evidence givencloser to the relevant point in time carries more weight. [47] I accept the Father’s position that he was still supporting older daughter when he filed the first application in June 2015. [48] The Mother states that older daughter should not be considered a child of the marriage during her post-secondary educationbecause she took five years to complete a two-year program. [49] While attendance on a full time basis is explicitly required under the Alberta Family Law Act and other provincial statutes, itis not a requirement of the Divorce Act. [50] The guiding principles are financial dependence and reasonableness: McKinnon v McKinnon, [1998] AJ No 85 (QB).

Post-secondary education pursued on a part time basis by an adult child with a clear career plan may entitle the child to support if the child’sincome from employment is insufficient to enable the child to fully withdraw from the parents: Sherlock v Sherlock, [1999] BCJ No1856 (SC); if a parent is obligated to contribute to the support of an adult child who is pursuing post-secondary education on a part timebasis, there is a corresponding obligation on the child to complete the education as expeditiously as possible and to reasonably contributeto his or her living and education costs: Sherlock, supra; a temporary absence from educational studies does not inevitably mean thechild is no longer a “child of the marriage”: Pearce v Pearce, (BC SC), [1999] BCJ No 2278 (BCSC). [51] I accept the evidence that it took longer for the older daughter to complete her post-secondary education primarily becauseshe was suffering from anorexia.

This was a pre-existing condition when she enrolled at MRU. The older daughter reduced the courseload while she was in treatment because she was following her doctor’s advice. I also find that her temporary absences from the programwere justified under the circumstances given her illness. The evidence indicates that once the older daughter was healthy, she was able tofocus on her studies and finish them expeditiously and in very good standing as the honour roll indicates.

Although the older daughterhad to take courses to improve her high school social studies grades, it was necessary for her admittance to the social work program anddoes not disentitle her from financial support. In any event, this may have been required had family unit remained intact. [52] I find that the older daughter’s educational pursuits were reasonable in the circumstances. In addition, at that time both parentswere employed. Considering the parents’ incomes at the time, they both had the ability to contribute to the cost of the older daughter’seducation.

Also, it would have been reasonable for the older daughter to expect that both parents would have continued to providesupport for her if the marriage had not broken down. [53] In addition to a consideration of the factors relevant to determine whether an adult child remains a “child of the marriage” forsupport purposes, courts are entitled to draw reasonable common sense inferences from the proven facts, and may take into account“notorious” (in this case obvious) facts: Nitchie v Nitchie, 2014 BCSC 468.

Considering her illness and the fact that well paid part timeemployment for students is far from abundant, I find that the older daughter made reasonable contributions toward her own education byworking part time, something that needs to be taken into account in the calculations of the parental financial responsibility.

[ 54 ] Upon balancing the relevant factors, I find that the older daughter was still a child of the marriage and entitled to support during her post-secondary education. As a result, the Father’s contribution toward the older daughter’s expenses will be considered as child support and dealt with accordingly. Although older daughter graduated on April 30, 2015, I find she required a grace period, and September 15, 2015 is an adequate period of grace for her to withdraw from her Father’s care.

As a result, she was still a child of the marriage when the Father brought his application seeking retroactive support. (ii) Court’s Jurisdiction [ 55 ] The Court’s jurisdiction has been dealt with as a preliminary issue earlier in these reasons. (iii) Whether Retroactive Support is Justified in the Circumstances [ 56 ] To determine whether a retroactive support order is justified in the circumstances, courts must balance the interest in certainty with fairness and the need for flexibility: DBS at para 133 . A court should consider (

i) whether the recipient spouse has provided a reasonable excuse for the delay, (ii) the conduct of the payor parent, (iii) the circumstances of the child, and (iv) any hardship that the retroactive award may cause: DBS at para 133 ; Goulding v Keck

(2012) ABCA 138. Reasons for Delay [ 57 ] The Father submits that he did not seek contribution from the Mother for the older daughter’s expenses because he was doing what “any father” would do. He supported the older daughter after she was evicted from her mother’s home and she tried to put her life back together while she was getting treatment for anorexia. He brought the application because the Mother tried to enforce the 2008 Order well-knowing its terms were specific to circumstances that had changed.

The evidence suggests that the Father spent prolonged periods of time outside the country when he was still employed as an engineer. According to the filed materials, it appears that lack of communication between the parties also contributed to the situation. These things, together with the obvious costs of litigation, provides sufficient support for the Father’s reasons for not seek contributions for the older daughter’s support earlier.

Conduct of the Payor Parent [ 58 ] The Mother asserts that she was not consulted on post-secondary and health-related expenses for the older daughter and therefore should not be required to contribute to them. The 2008 Order explicitly requires the Mother to contribute to the older daughter’s support, including post-secondary and health related expenses. The evidence clearly indicates that the Mother was aware of the older daughter’s post-secondary pursuits and at least some of her health expenses. The Mother turned a blind eye choosing not to get involved.

She did not offer to make any financial contribution towards the older daughter’s expense knowing she had a legal obligation to do so pursuant to the 2008 Order. [ 59 ] The Mother took the position that the older daughter was no longer a child of the marriage and not entitled to support despite knowing that the older daughter had just graduated from school and had no job at the time. There was no basis for her assumption that the older daughter was financially independent. If she had any doubts about her obligations, she should have sought a variation of 2008 Order.

The Mother was indifferent to the older daughter’s circumstances. [ 60 ] The 2008 Order was granted based on anticipated incomes of $105,000 for the Father and $60,000 for the mother. Both parties failed to exchange their financial information over the years. But while the Father’s income remained substantially similar until he lost his job, the Mother’s income increased significantly.

The exchange of financial information certainly would have triggered increased child support obligations for the Mother and would have provided the Father with a greater ability to support the older daughter, especially after he lost his job. The Mother had to have known that her rising income supported a greater obligation to support the children.

The fact of her failure to disclose this, standing on its own, would be sufficient to conclude that the Mother’s conduct is blameworthy. [ 61 ] The income of the parties between 2010 and 2015 is set out in the following schedule: Year Father’s Income Mother’s Income 2010 $108,020 No information provided 2011 $112,571 No information provided 2012 $113,060 $ 98,501 2013 $115,302 $ 90,995 2014 $113,398 $ 103,756 2015 $13,706 $ 86,202 [ 62 ] Not only did the Mother fail to disclose her income contrary to the 2008 Order, she arbitrarily terminated support for the older daughter and instructed MEP that there was only one child of the marriage.

She sought enforcement of the 2008 Order against the Father for the younger daughter’s support knowing the realities of the 2008 Order, in particular that it was crafted on the basis that both children were in her sole custody. She knew that the Father was supporting the older daughter directly. The Mother is not entitled to pick and choose which provisions of a court order are valid or enforceable. [ 63 ] In considering all of the circumstances, I find that the Mother’s conduct is blameworthy. Circumstances of the Child [ 64 ] I have already discussed the older daughter’s circumstances.

I simply note that the evidence indicates she underwent hardship due to the mother’s lack of financial support starting May 2010. In particular residing for a time in a shelter for homeless teens.

Hardship to Payor [ 65 ] There has been no suggestion that a retroactive order would create any hardship for the Mother. Conclusion on Retroactive Support for the Older Daughter [ 66 ] I find that the Father’s application for retroactive support for the older daughter is justified in all the circumstances. The presumptive date for a retroactive award according to DBS , is the date of effective notice up to three years in the past.

However, where the payor parent engages in blameworthy conduct, a court may exercise its discretion and move the presumptive date of retroactivity back to the time when circumstances changed materially. [ 67 ] Circumstances changed materially in June 2010, when the Father became aware that the older daughter was no longer living with the mother and started supporting her directly.

Considering the Mother’s blameworthy conduct and the evidence as a whole, I find that the presumptive date of retroactivity should be July 1, 2010. [ 68 ] I find that the older daughter was a child of the marriage and entitled to support from both parents while she was pursuing her post-secondary education. The Father is granted retroactive support for the older daughter for s. 3 and s. 7 expenses from July 1, 2010 until September 15, 2015, the date she ceased to be a child of the marriage. [ 69 ] The Mother has not provided any income tax returns or Notices of Assessment for 2010 and 2011.

As a result, I impute to her an income of $75,000 for 2010 and $80,000 for 2011 2) The Father’s Claim for a Retroactive Recalculation of the Younger Daughter’s Support [ 70 ] Section 17(4) of the Divorce Act enables a court to make a variation order that increases or decreases payments for child support both retroactively or prospectively if there is a change in circumstances.

In LMP v LS , 2011 SCC 64 , the Supreme Court confirmed that under s. 17(4) of the Divorce Act , the test for a “material change” is a change that is substantial, continuing, and “if known at the time, would likely have resulted in a different order”.

A change in the payor’s annual income is generally considered a material change under s. 17(4) of the Divorce Act: Lee v Chung , 2011 BCSC 404 . [ 71 ] The relevant factors established in DBS to determine whether a retroactive order is justified under the circumstances follows: Reasons for Delay [ 72 ] The Father claims he did not bring an application seeking a variation of the younger daughter’s support obligations because he received flawed legal advice. Under the 2008 Order, the Father was required to pay to the mother $1,497 in monthly support for the two children residing with her at that time.

The Father submits that when the older daughter stopped living with the Mother, he was instructed to divide the total amount under the 2008 Order in half, and pay $748.5 to the mother for the younger daughter’s support.

However, this approach did not take into account that the younger daughter was living with the Mother, but the Father was supporting the older daughter directly and the Mother was not making any contributions to the older daughter’s support. [ 73 ] The Father also submits that he continued to support the younger daughter in accordance with what he thought he was required to do, and continued to provide support even after his employment was terminated. He was not aware that the Mother sought to enforce the 2008 Order without consideration for the change in circumstances regarding the older daughter.

He submits that the Mother knew he was supporting the older daughter and knew about his financial situation.

Her stated that this is indicated by her acceptance of the reduced payments for the younger daughter’s support since 2010. [ 74 ] The Father’s statements suggest that parenting issues and concern that the Mother would react vindictively by limiting his access to the younger daughter were also reasons for the delay in seeking a variation of the 2008 Order. [ 75 ] I find the Father has provided a reasonable explanation for delay in seeking a recalculation of his support obligations and variation of the 2008 Order at an earlier time.

Conduct of the Payor Parent [ 76 ] The Mother has been found to have engaged in blameworthy conduct. The evidence indicates she was aware that the Father was supporting the older daughter but still proceeded to enforce the 2008 Order. In addition, she withheld income information that would have triggered increased child support obligations for both children. Circumstances of the Child [ 77 ] The evidence is not sufficient to assess the younger daughter’s circumstances and determine whether she underwent hardship or was negatively affected.

Hardship to Payor [ 78 ] There has been no suggestion that a retroactive order would create any hardship for the mother.

Conclusion on Retroactive Support for the Younger Daughter [79] After considering the evidence as a whole and the principles and factors relevant for an exercise of judicial discretion, Iconclude that a retroactive recalculation is justified in the circumstances of the parties. [80] Accordingly, the Father is granted a retroactive adjustment of his s. 3 and s. 7 support obligations for the younger daughter.Considering the Mother’s blameworthy conduct, the commencement date for recalculation is July 1, 2010, the date the Father startedsupporting the older daughter directly, and his support obligations for the younger daughter should have been adjusted. 3) The Mother’s Claim for Ongoing Support for the Younger Daughter [81] In Alberta, the age of majority is 18 years of age.

The younger daughter is 19 years old and presumptively no longer a child ofthe marriage. Orders are routinely made for support for children over the age of majority who are unable to achieve self-sufficiency byreason of post-secondary education.

Such orders are intended to support education necessary to equip the child for independence in thefuture: Montalto v Montalto, 2011 ABQB 574. [82] However, an adult child’s attendance at school, college, or university is not in itself sufficient to bring the child within themeaning of s. 2(1) of the Divorce Act, unless such attendance renders the child unable to withdraw from the charge of the parents toobtain the necessaries of life: Durose v Durose, [1996] BCJ No 420 (SC); Nitkin v Nitkin, (ON SC). [83] The onus is on the party seeking the order to prove that an adult child who is pursuing post-secondary education is entitled tosupport as a “child of the marriage” within the meaning of section 2(1) of the Divorce Act: Olson v Olson, 2003 ABCA 56 ,[2003] AJ No 230 (CA).

The party must produce persuasive evidence that the child is not financially independent. Evidence of thatnature includes transcripts and academic performance records, grants, scholarship applications, employment records, and a budget settingout reasonable expenses: Heubach v Heubach, 2011 ONSC 1057 at para 38. None of this has been produced by the Mother. [84] There is evidence that the younger daughter received a conditional letter of acceptance from MRU in April 2015.

Nothingmore has been provided to the Court. [85] The evidence that the younger daughter is attending MRU is insufficient to establish that she remains a child of the marriage.There is no confirmation that following receipt of her conditional letter of acceptance that she has attended MRU. There is no evidenceabout the program in which she is said to be enrolled or the cost of tuition and related expenses or whether she is enrolled full time orpart time.

There is no evidence about what she may be contributing to her own education through part time employment or receipt ofgrants and scholarships. [86] There has been no attempt to establish that the younger daughter’s educational pursuits are reasonable in the circumstances orthat it is appropriate for the Father to contribute to her post-secondary studies.

As a result, there is no evidence that the younger daughteris not financially self-sufficient or unable to withdraw from the charge of her parents. [87] While a parent is expected to make some sacrifices to assist a child with their education, a parent is not required to jeopardizehis or her own financial security in retirement (Bola v Bola, 2014 BCSC 861). The younger daughter’s father is presently unemployedand is relying on retirement savings to meet expenses. He cannot be expected to fund the younger daughter’s post-secondary educationand face the risk of not having any savings left to live on in the future.

This would be unreasonable and contrary to the underlining theoryof the Guidelines upon which support obligations specifically rely on the parents’ respective incomes: DBS at para 45. [88] The relationship between the younger daughter and her Father may be another relevant consideration. When determiningwhether it would be “fit” and “just” for a parent to provide financial support for the child, a court may consider whether a mature childhas unilaterally terminated the relationship with that parent without any apparent reason: Farden.

A parent is burdened with heavyfinancial responsibilities and it seems reasonable to demand that a child, who expects to receive support, entertains some type ofrelationship with the parent: Farden. Despite its inconsistent judicial consideration, this factor still has some weight: BLP v DAP, 2014ABQB 89; Olson v Olson, 2003 ABCA 56; Deveer v Wolchyn, 2011 ABQB 288. [89] I find that there is no evidence of misconduct attributable to the Father sufficient to disentitle him to access. As a child, theyounger daughter may have had little control over access to her father.

However, she is now an adult and there is no evidence before thatCourt that she has made any attempt to reinstate a relationship with her Father. [90] Although adult children are generally entitled to receive support while pursuing post-secondary education, each case must bedecided on its own facts and requires relevant evidence. In this case, the evidence fails to establish that the younger daughter is still achild of the marriage and entitled to support. Based on the evidence, the younger daughter was no longer a child of the marriage whenshe turned age 18.

Conclusion on Mother’s Claim for Ongoing Support for the Younger Daughter [91] The Mother’s application for ongoing child support for the younger daughter is dismissed. 4) Father’s Claim for Variation of Arrears Arising from the 2008 Order [92] Whether courts should retroactively reduce arrears under s. 17 of the Divorce Act was addressed in Haisman v Haisman, 1994ABCA 249, a routinely cited decision on this issue.

In Haisman, the court held that a “present inability to pay past arrears does not alonejustify a variation order, although it may justify a suspension of enforcement in relation to arrears for a limited time.” However, where

the past inability to make child support payments depends on special circumstances, the situation may be different. [ 93 ] Courts may issue retroactive orders that reduce or cancel arrears of support if there has been a material change in circumstances of one of the parties, or a child, during the period of retroactivity, and the applicant would have been granted a reduction in his or her support obligation but for his or her untimely application.

An order may also issue in circumstances in which the change has been significant, long lasting, real and not one of choice: Brown v Brown , 2010 NBCA 5 at para 2 . [ 94 ] On the evidence provided, the Father’s arrears have accumulated under the 2008 Order which is presumptively valid. However, the underlying circumstances of the 2008 Order have changed. There have been at least three material changes in the period of retroactivity. [ 95 ] The first material change in circumstances occurred in May 2010 when the older daughter stopped residing with her mother.

Although the Father reduced his payments to the Mother, he started supporting the older daughter directly. The arrears that the Mother claims are based on the incorrect assumption that there was only one child of the marriage from 2010 to 2015. However, I have found that there were two children of the marriage from 2010 to 2015 and each parent financially assisted one child.

Accordingly, the Father did not owe the amount of child support that the Mother claims pursuant to the 2008 Order for the younger daughter; he would have owed less. [ 96 ] A second material change occurred when the Father lost his job in 2014. Although he received severance pay that extended his income until the end of November 2014, his income dropped significantly. It dropped further when he was in receipt of EI benefits. He is presently relying on retirement income. [ 97 ] The Mother alleges that the Father is intentionally unemployed. However, no persuasive evidence was produced to support this allegation.

Intentional avoidance of child support obligations must be supported by evidence: Hunt v Smolis Hunt, 2001 ABCA 229 . [ 98 ] A third material change occurred at the end of 2015 when both children had ceased to be children of the marriage for ongoing support purposes. [ 99 ] Each of these circumstances would have resulted in a different order for child support. The Father would have been granted a reduction or cancellation of his support obligations if he had brought a timely application.

Also, these changes are significant, long lasting, and not a matter of choice Conclusion on Variation of Arrears Arising from the 2008 Order [ 100 ] Applying the legal framework outlined in these reasons, the Father’s application for a cancellation of the arrears accumulated under the 2008 Order is granted. I have already dealt with the recalculations of child support and respective entitlements.

Summary of Conclusions [ 101 ] The findings of this Court are summarized for the convenience of the parties: i. The older daughter was a child of the marriage and entitled to support until September 15, 2015. ii. The younger daughter was a child of the marriage and entitled to support until June 30, 2016; iii. The Father is granted retroactive support for the older daughter and a recalculation of his support obligations for the older daughter and the younger daughter. iv. The commencement date for all recalculations is July 1, 2010. v. All recalculations are made in accordance with the Guidelines based on the annual incomes of the parties taking into account (

i) the imputed income of the Mother for 2010 and 2011, and (iii) the older daughter’s contributions to her own education, representing 50% of her line 150 taxable income while enrolled at MRU. vi. Recalculation results in a reimbursement to the Father of $32,721 representing

section 3 payments for the period July 1, 2010 – June 25, 2015. vii. Father’s

section 3 overpayments: Year Amount 2010 $747 2011 $2,460 2012 $4,392 2013 $6,305 2014 $8,184 Jan 1, 2015 – June 25, 2015 $10,633 viii. In 2015, the Father made

section 3 payments of $5,423 to the Mother for the younger daughter’s support until June 25, 2015. However, the evidence does not indicate whether the Father made additional payments to the Mother for the younger daughter’s support after he filed his application on June 25, 2015. If he did, the parties should recalculate his entitlement for

section 3 for 2015 on the basis of the following findings: a. Father’s income $ 13,706;

b. Mother’s income $ 86,202; c. The net monthly guideline amount payable by the Mother is $613; d. The younger daughter was a child of the marriage until her 18th birthday in 2015; e. The older daughter was a child of the marriage until September 15, 2015; f. Only actual payments from the Father to the Mother shall be taken into account; g. No amount seized by MEP shall be part of the calculations unless it was released to the Mother. ix. The Father is entitled to reimbursement of $5,716 for

section 7 expenses for the period July 1, 2010 – December 15, 2015. Father’s

section 7 overpayments: Year Younger Daughter Older Daughter 2010 $1,419 $1,007 2011 $392 $1,753 2012 $128 $0 2013 $0 $0 2014 $0 $1,017 2015 $0 $0 x. Arrears accumulated under the 2008 Order are cancelled; xi. All the funds garnished from the Father’s account and held either by MEP or in a solicitor’s trust account shall be released to the Father within 30 days of the filing of these reasons; xii. The older daughter and the younger daughter are deemed to be no longer children of the marriage for support purposes.

Therefore, neither child is entitled to support going forward. [ 102 ] The Father at 55 years of age may yet return to full time employment. If he does so and the younger daughter proves to the satisfaction of this Court that she is unable to withdraw from her parent’s care, an order arising from this judgement regarding her support may be reviewed upon appropriate notice. [ 103 ] The parties shall exchange their tax returns on or before June 30 each year until the younger daughter has completed such post- secondary program as defined herein.

Costs [ 104 ] If the parties are not able to agree on costs, they may speak to the matter within a reasonable period of time. Heard on the 8 th day of April, 2016 and the 30 th day of June, 2016. Dated at the City of Calgary, Alberta this 1 4 th day of November, 2016. M.C. Erb J.C.Q.B.A. Appearances: Lesley Cooney-Burk for the Applicant/Respondent/Defendant Todd Wytrychowski

for the Respondent/Applicant/Plaintiff _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice M.C. Erb _______________________________________________________ Paragraph [101] ii: Amended to read: The younger daughter was a child of the marriage and entitled to support until June 30, 2016.