Gotte v Gotte, 2021 ABQB 224

Court of Queen’s Bench of Alberta Citation: Gotte v Gotte, 2021 ABQB 224 Date: 20210324 Docket: 4801 141974 Registry: Calgary Between: Marla Jean Gotte Applicant - and - David Raymond Gotte Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ [ 1 ] The parties were married in April, 2002, separated in June, 2008, and divorced in March, 2010. [ 2 ] They have one daughter, born on May 8, 2002, who turned 18 in 2020.

Since 2015, the daughter has been residing with the Mother. [ 3 ] The daughter graduated from high school in June, 2020. Upon graduating from high school, the daughter enrolled in a clinic laser technician course and then, in a clinical skincare technician course. She will graduate in April, 2021. [ 4 ] On October 2, 2015, Justice Nixon granted the parties a consent child support order that set out the Father’s

section 3 and 7 child support obligations. The Father had been paying child support pursuant to the terms of the order until the daughter graduated, when he stopped paying child support. His reason for stopping support is that he believes the daughter is no longer a “child of the marriage”. [ 5 ] The Mother brings the following applications: i. That the daughter be considered a “child of the marriage” pursuant to section 2(1) (

b) of the Divorce Act ; and ii. That the Father pay child support. [ 6 ] The Father brings a cross-application for a declaration that the daughter is no longer a “child of the marriage”. Is The Daughter A “Child of the Marriage”? [ 7 ] The central question I must determine is whether the daughter, who is now an adult and attending studies in the beauty industry as a skin and laser technician should be considered a “child of the marriage” within the meaning of

section 2 of the Divorce Act .

[8] The Mother asserts that the daughter has not withdrawn from her parents’ charge and is not self-sufficient. She argues thatthe daughter has made contributions towards the cost of her education but that the daughter does not qualify for student loans, that thedaughter’s income does not allow her to be self-sufficient during her course of studies, and that the daughter has not unilaterally alienatedthe Father. [9] The Father argues that the daughter should not be considered a child of the marriage.

The Father’s primary arguments arethat the daughter is working full-time and is economically self-sufficient, that she is earning sufficient income or can apply forscholarships to cover the cost of her current education, that the Eternal Beauty Institute is not a properly accredited institution, and thatthe daughter has, over the last six years, unilaterally alienated herself from her Father. [10] The parties argue that a proper application of the factors enumerated in Farden v Farden (1993), (BC SC),48 R.F.L. (3d) 60 (B.C.

Master) supports each of their respective positions (In addition to Farden, I also found several other cases useful,including SMW v WJB, 2013 ABQB 228, KNH v JPB, 2019 ABQB 511, CDH v DJH, 2020 ABQB 7 , 2020 ABQB7). [11] In applying the Farden factors to the particular facts of this case, I am mindful of the following considerations: • The onus of proof that an adult child is a “child of the marriage” rests on the party seeking support (Olson v Olson, 2003 ABCA56 at paras 16-18); • A determination as to whether a child attending a post-secondary institution should be considered a child of the marriage requiresan examination of all of the circumstances with no one factor being determinative (Taggart v Taggart, 2019 ABCA 78 at para 6); and • It is not reasonable to expect a parent to financially support their adult child who has unilaterally terminated their relationshipwithout any apparent reason (Farden, at pages 10-11).

While the quality of the relationship between the adult child and the payor is afactor to consider, it is not determinative of the analysis (Wahl v Wahl, 2000 ABQB 10 at para 67). [12] I now turn to an application of the Farden factors. [13] The first, is whether the child is enrolled in a course of studies, whether full-time or part time. Since she graduated from highschool in June, 2020, the daughter has been fully enrolled in post-secondary studies at The Eternal Beauty Institute, first in a lasertechnician course and immediately following that, in a skin technician course.

The daughter expects to graduate in April, 2021. [14] The second, is whether the child has applied for, or is eligible for, student loans or other financial assistance. The Mother hasgiven Affidavit evidence that the daughter is not eligible for student loans due to the Mother and her husband’s combined income.

Itappears, from the Father’s Affidavit that the Alberta government has not accredited The Eternal Beauty Institute as an approvedinstitution for the granting of student loans. [15] The third factor assesses whether the post-secondary studies are consistent with the child’s career plans or is more in thenature of a lark. There does not appear to be any dispute that the daughter is serious about developing her skills as a laser or skintechnician. She took cosmetology in high school and obtained a Laser Technician Diploma from The Eternal Beauty Institute inNovember, 2020.

Further to her studies, the daughter has obtained a website domain for Lotus Skin and Laser, a business that sheadvertises on Facebook. She has also obtained the necessary Calgary business license to carry on the business. She hopes that she canwork in her chosen field once her studies come to an end in April, 2021. From what I can tell, the daughter’s current studies areconsistent with her career plans of opening a skin technician business of her own. [16] The fourth factor assesses the ability of the child to contribute towards the cost of their own support through part-timeemployment.

The daughter is currently employed part time as a restaurant cashier and greeter with an income earned in 2019 ofapproximately $9,300.00; of approximately $12,000.00 in 2020; and thus far, of $400.00 in 2021.

According to the Mother’s Affidavitevidence, the daughter’s employment shifts have been cut from three or four shifts per week to one shift due to pandemic-relatedrestrictions. [17] Despite her her modest means, the daughter has thus far contributed approximately $14,000.00 towards the cost of her studiesand fledgling business, which include: - $3,893.74, half of the laser technician program; - $4,583.33, one third of the skin technician program; - $980.00 for scrubs and shoes; - $600.00 for a Calgary business license and website/domain charges; and - $2,762.00 for the purchase of her car, as well as additional costs for car insurance, registration and gas. [18] Further, the Mother’s Affidavit evidence is that the daughter recently signed a contract with The Eternal Beauty Institutewhereby she will pay them half of what clients pay her for laser treatments.

I do not have any evidence as to what income the daughter asthus far earned as this arrangement has just begun. [19] In my view, the daughter is currently not economically self-sufficient, particularly in light of her contributions towards thecost of her studies and her limited ability to get work shifts due to pandemic restrictions. [20] As for the fifth factor, the daughter will turn 19 in May, 2021.

She is age-appropriate for the studies she is currentlyundertaking and is focused on a timely completion of her studies. [21] The sixth factor requires an examination of the child’s past academic performance and whether she is demonstrating success

in her chosen field of practise. In this regard, the Father points to the daughter’s frequent absences in her cosmetology class in high school and the impact her teacher thought this might have on her ability to complete her work. As a result, the daughter was referred to the school’s guidance counsellor and assistant principal.

The Mother explains the daughter’s absences at school as being caused by irregular school bus pick-up. [ 22 ] I do not have sufficient evidence to assess the daughter’s academic performance or school accomplishments, and I cannot say whether her school absences had any impact on her academic performance. However, the daughter received her high school diploma. It seems that she is currently thriving in her chosen field of studies.

As the Father himself admits, the daughter’s business “appears to be successful” and has attracted several favorable on-line reviews. [ 23 ] The seventh factor asks whether the parents made plans for the education of their children prior to separation. It does not appear that the parties explicitly discussed the issue of providing for the daughter’s post secondary studies prior to separation. However, paragraph 5(

d) of the 2015 Consent Order specifies that

section 7 expenses, for which each of the parties was contributing in proportion to their relative incomes, include expense for post-secondary education after [the daughter’s] contribution has been taken into account inclusive of any grants, scholarships, RESPs and other sources of funding”. [ 24 ] At the time of the 2015 Consent Order, the parties contemplated that the cost of the daughter’s post-secondary education, less her contributions, would be considered a shared

section 7 expense. [ 25 ] The eighth and final factor is whether the child has unilaterally terminated a relationship from the parent that child support is being sought without any apparent reason. [ 26 ] The parties agree that the Father and daughter had a close and loving relationship that continued following the parties’ separation in 2008. However, the relationship seems to have broken down when the Father moved in with his girlfriend and her children in 2014. In 2015, shared parenting of the daughter stopped when the daughter moved in with the Mother.

The Father states that despite his love for her, the daughter initiated the estrangement and continues to reject his efforts to renew their relationship. [ 27 ] During the application, the Father described the efforts he has made over the last six years to contact his daughter either through voicemails and texts or through visits to his employment and attempted contact at church.

Unfortunately, these were not in evidence and I do not consider them other than as a general narrative that the Father does not believe his repeated efforts in reaching out have been reciprocated. [ 28 ] In his Affidavit, the Father attaches a lengthy e-mail written by his daughter that starts with the opening sentence: “To start off this e-mail, I would like to explain why I am still deemed a “child of the marriage”.

Frankly, I wonder whether this rather self-serving letter was written for the purpose of advancing the Mother’s application or whether it is a genuine attempt on the daughter’s part to explain her feelings towards her Father. [ 29 ] Nevertheless, it is the only evidence that I have directly from the daughter. In the letter, the daughter describes that the Father has raised the issue of parental alienation as an excuse for not having to contribute towards her studies. She goes on to explain why she feels resentment over the way she feels she was treated by the Father when he moved in with his girlfriend.

The daughter states that she is open to a relationship with the Father but that the Father must agree to attend counselling, something which he apparently refuses to do. She states that the Father can contact her any time via e-mail and telephone but that he has not done so. [ 30 ] The daughter puts the onus on the Father to repair their relationship. The Father is hurt by what he perceives as her rejection of him and believes he is being taken for granted.

I do not blame the Father for feeling that the daughter continues to spurn his efforts to mend their relationship. [ 31 ] This is a relationship in breakdown that needs repair. It is a situation where each bears some responsibility.

But I do not have any evidence that the daughter has unilaterally or without any apparent reason alienated herself from the Father and I do not in any event view their strained relationship as the determinative reason to disqualify the daughter as being considered a “child of the marriage.” [ 32 ] As things presently stand, the daughter is asking that she be considered a “child of the marriage” for the duration of her current program which will end in April, 2021.

However, should the daughter decide to continue her education for which she believes the Father should contribute, then she will have to show some real efforts in repairing the relationship. The Father cannot simply be expected to continue supporting the daughter while she continues to cling to her grievances as an excuse for not making reasonable efforts to resolve their disagreements. [ 33 ] There is one additional factor to consider in the analysis. The Father believes that The Eternal Beauty Institute is not a properly accredited institution.

The Father points to the fact that the school is not accredited by the Alberta government and is not listed on the Alberta Student Aid website. The Father refers to the fact that anyone can open the school as a franchise which I take him to mean that the school is being run as a purely for-profit undertaking rather than as a true educational institution. [ 34 ] These arguments do not persuade me. I do not have any evidence to suggest that The Eternal Beauty Institute is a scam or does not offer the necessary training to qualify as a certified skin and laser technician in the beauty field.

From all indications, the daughter is receiving the skills and training she needs to become self-sufficient in the beauty industry. [ 35 ] It is clear that the daughter’s current studies are a continuation of her interest in cosmetology which she first took in high school. She is developing her vocational skills as a laser and skin technician with a view to running her own business and becoming successful in the beauty industry.

It is reasonable to expect that upon successful completion of her current studies, the daughter will achieve gainful employment and ultimately, financial independence. [ 36 ] Having completed the Farden analysis and examined all the facts in their proper context, I am satisfied that the daughter remains a “child of the marriage” and she will continue to be so until the completion of her studies in April, 2021. Should the daughter wish to pursue further studies at that time, then a further determination may have to be made as to whether the daughter should still be

considered a “child of the marriage”. Retroactive And Ongoing Support

Section 3 Support [ 37 ] Given that the daughter continues to be a “child of the marriage”, I see no reason to displace the terms of the 2015 Consent Order. The Father has not sought a variation of support due to his changed financial circumstances nor has he filed any evidence or materials in opposition to the Mother’s application for retroactive and ongoing support. Consequently, what is owed by the Father are arrears in

section 3 support. [ 38 ] The Father stopped paying

section 3 child support starting in June, 2020, on his assessment that the daughter was no longer a “child of the marriage”. As I have found that the status of the daughter has not changed upon her embarking on her studies, the Father’s obligations to support the daughter continues from July, 2020, to April, 2021. [ 39 ] For child support payments from July to December, 2020, the Father’s child support is based upon his pre-termination income of $64,615.00 plus three months of severance ($7,179.44 per month), for a combined total income for 2020 of $86,153.32. The Mother’s 2020 income is $56,825.00.

I calculate the Father’s monthly support payments to be $757.00 for the months of July to December for total support owing of $4,542.00. [ 40 ] For the months of January to April, 2021, (and assuming that the Mother’s 2021 income is the same as her 2020 income of $56,825.41), the Father’s child support owing will be based on an income that represents the remaining 5 months of his severance, which is $35,897.00. The Father’s monthly child support shall be $296.00 per month for a total of $1,184.00. This assumes that the Father will not earn any additional income in 2021, so further adjustments may be necessary.

Section 7 Support [ 41 ] The Mother claims

section 7 expenses in the total sum of $464.80 for his share of the daughter’s orthotics and glasses. While these appear to be proper

section 7 expenses, paragraph 6 of the 2015 Consent Order stipulates that neither party could incur a compensable

section 7 expense without the prior written consent of the other party, such consent to not be unreasonably withheld. The Mother concedes that she did not provide the Father with prior notice of these

section 7 expenses and I will therefore not allow them. [ 42 ] However, with respect to the Father’s contribution towards the daughter’s post-secondary studies, the Mother provided the Father with prior notice of the daughter’s intention to pursue her present course of studies by way of e-mail dated April 28, 2020. The Mother advised the Father that the daughter would pay one half of the laser technician program, leaving the Mother and Father to pay 25% of the cost each, in the sum of $1,946.87.

The Father is being asked to pay 33% of the cost of the skin technician program, in the sum of $4,583.33. [ 43 ] Owing to the contributions by the Mother and daughter towards the cost of the daughter’s studies, the Father is paying less than what he would have paid had his share been calculated as a proportionate share of income as per the terms of the 2015 Consent Order.

Based on the parties’ respective incomes for 2020, the Father’s share towards the daughter’s expenses would normally have been 60% in 2020 and 39% in 2021. [ 44 ] Consequently, I find that the Father’s total share of the daughter’s studies, of $6,530.20 is reasonable and fair in the circumstances and is payable. [ 45 ] The Father argues that he is impecunious. He lost his employment in October and due to his age, will have difficulties finding employment once his severance runs out.

While I appreciate that the Father is likely to face challenges finding new employment, I do not accept that his present circumstances should result in any variation or derogation of his support obligations. [ 46 ] The Father unilaterally ceased payments of child support commencing in July, 2020, while he was still employed. He received eight months of severance in October, 2020 which cover the entire period of the daughter’s studies.

In my view, he has, or had, sufficient income to meet his support obligations and he should have planned accordingly. [ 47 ] In the result, for the period of June, 2020 to April, 2021, the Father owes the Mother

section 3 support in the sum of $5,726.00 and

section 7 support in the sum of $ 6,530.20. [ 48 ] As for the Mother’s costs, she is entitled to costs in the sum of $2,000.00. In awarding costs, I am mindful that this matter has already proceeded to court twice and to a hearing with a Dispute Resolution Officer. Further, the Father indicated that he was not prepared to make any contribution towards the cost of the daughter’s studies.

While the Father is within his rights to make what he believes is a principled decision, I am entitled to consider what genuine settlement discussions the parties engaged in prior to incurring the additional costs of having to prepare for court. [ 49 ] The Mother shall prepare an order and submit it to me directly for my endorsement. Heard on the 12 th day of March, 2021.

Dated at the City of Calgary, Alberta this 24 th day of March, 2021. O.P. Malik J.C.Q.B.A. Appearances: Megan P. Zybutz, for the Applicant, Marla Jean Gotte David Raymond Gotte, Self-Represented