Smith v Smith, 2020 ABQB 775

Court of Queen’s Bench of Alberta Citation: Smith v Smith, 2020 ABQB 775 Date: 20201211 Docket: 4804 011343 Registry: Grande Prairie Between: Kelly Lynn Smith Applicant - and - Clinton Joseph Smith Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] The parties appeared in regular Chambers on June 24. At that time, many of the issues between the parties were resolved.

However, the Court sought submissions in respect of one discrete legal issue that could not be resolved on the basis of the information before the Court. That discrete legal issue is the subject matter of these Reasons. The issue relates to the parties’ daughter (M), who turned 18 approximately half-way through her last year of high school. Given the rather unique circumstances of her attendance at high school during her final year, the issue is whether and/or the extent to which Mr. Smith was obligated to pay s 3 child support to Ms.

Smith in relation to M once she reached the age of 18 while she was attending high school. Unique circumstances of this case [ 2 ] When M commenced grade 12 in September of 2019, she was 17 years old. The principal of the high school provided a letter confirming that she was in full-time attendance, expecting to graduate in June of 2020. It appears that the only “academic” course that

she completed in the second half of the year was Science 30. The bulk of her courses related to her enrollment in the school’s Registered Apprenticeship Program, where she was training to be a parts technician. Her report card indicates that she took six parts technician courses in the second semester. [ 3 ] Part of the Apprenticeship Program includes work experience for which the student is paid. Between January and June of 2020, M earned a gross income of $15,628.75, or an average of $2,605 per month.

The paystubs from the employer who employed her during this period confirmed that her net income during this period was $13,014.46, an average of $2,169 per month. Position of the parties [ 4 ] Mr. Smith submits that, given the income earned by M during the second semester of grade 12, M should not be considered a child of the marriage from January 15, 2020 (M’s birthday) onward. [ 5 ] Ms. Smith submits that, notwithstanding the income earned by M, she remained a child of the marriage after the age of 18 because she was enrolled as a full-time student in high school.

Applicable Law [ 6 ] The parties were unable to locate cases that involve circumstances similar to those before the Court. Ms. Smith relies on the definition of “a child of the marriage” in s 2 of the Divorce Act , RSC 1985, c. 3. She also refers to the Alberta Court of Appeal decision in Caldwell v Caldwell , 2013 ABCA 268 , which considered the definition of “child” under the Family Law Act , SA, 203 c F-4.5.

She also relies on the Alberta Court of Appeal decision in Farden v Farden , 2003 ABCA 56 , in support of her submission that M’s full-time attendance in high school maintained her status as a child of the marriage. She refers to the Lalonde v Lalonde , 2016 ABQB 600 , which held that not all the Farden factors must be present. Rather, what is determinative is whether or not a child is still dependent on their parents.

An example of this can be found in JP v JAP , 2010 ABQB 53 , where a child was held to be a child of the marriage after reaching the age of 18 because she remained in high school and was dependent on her parents for support. [ 7 ] Mr. Smith relies on the Federal Child Support Guidelines in support of his position that the amount of s 3 support for a child over the age of 18 should be determined having regard to the condition, means, needs and other circumstances of the child, as well as the other factors set out in s 2 of the Guidelines.

He relies on Redmonchuk v Redmonchuk , 2007 MBCA 22 , and its consideration by this Court in Montalto v Montalto , 2011 ABQB 574 , which highlight that child support for children over 18 are dependent on the facts of each case. Analysis [ 8 ] I take judicial notice of the fact that the minimum wage in Alberta is $15 per hour. M’s pay slips indicate that she was being paid $18 per hour for regular hours and $27 per hour for overtime work.

While her number of hours and monthly income varied during the six month period in question, her average monthly income exceeds that which would be earned by a person working a minimum wage job in Alberta during that time period. [ 9 ] It is difficult, then, to accept Ms. Smith’s submission that M was still dependent on her parents and would not have been able to remove herself from her parents’ care during this six month period. The vast majority of cases in which this issue arises involve children who are attending post-secondary institutions.

The issue is often the extent to which the student ought to be expected to contribute to their own living expenses while in full-time attendance at a university or similar educational institution. Typically, the student is either not working at all or is working a part-time job and the question is whether it is reasonable to expect them to work while undertaking their course of studies and, if so, the extent to which any income earned should result in a reduction in the parent’s child support obligation.

There is no suggestion in JP that the child who turned 18 in the month prior to graduating high school had earned any income of her own that could be taken into account when determining her parent’s child support obligation to her during that roughly one to two month period. Justice Thomas found as a fact that she remained dependant on both parents for financial support during May and June because she was still in high school. I conclude that this case, relied on by Ms.

Smith, is distinguishable on its facts from the case before this Court. [ 10 ] This is not a case in which there is a theoretical or philosophical argument over whether and the extent to which M ought to contribute to her own living expenses between her birthdate of January 15 th and her graduation date sometime in June. The fact is that she earned an income greater than a minimum wage job would have paid her. I find this to be dispositive of this issue.

The fact that she was able to graduate high school through enrollment in this program does not determine whether she remained financially dependent on her parents during that period. Nor does the fact that she continued to reside with her mother for all or a good portion of this six month period.

The fact is that she earned an income sufficient to provide for her basic needs, had she been called upon to do so. [ 11 ] I therefore conclude that M ceased to be a child of the marriage when she reached her 18 th birthday on January 15 th , 2020, by virtue of her employment as an apprentice parts technician, which provided her with an income sufficient to enable her to withdraw from her parents’ care and to be independent had she chosen to do so. Conclusion [ 12 ] I therefore conclude that Mr. Smith’s obligation to provide s 3 child support in relation to M ceased on January 15 th , 2020.

Heard on the 24 th of June, 2020. Received written submissions on July 28 th , 2020. Dated at the City of Grande Prairie, Alberta this 11 th day of December, 2020. D.L. Shelley J.C.Q.B.A. Appearances: Joseph Canavan Dobko & Wheaton for the Applicant Veronica Donald Stringam LLP for the Respondent