Nyereyogona v Schofield, 2021 ABQB 662

Court of Queen’s Bench of Alberta Citation: Nyereyogona v Schofield, 2021 ABQB 662 Date: 20210819 Docket: 4803 159036 Registry: Edmonton Between: Carol Ann Nyereyegona Plaintiff/Applicant - and - John Peter Schofield Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J.

Manderscheid _______________________________________________________ Introduction [ 1 ] The Plaintiff/Applicant, Carol Ann Nyereyegona (“Applicant”), commenced a Special Family Chambers Application on September 22, 2020 (“Application”) seeking retroactive and ongoing child support from the Defendant/Respondent, John Peter Schofield (“Respondent”), in respect of her two children DNH and TNH (collectively “the children”), from her previous marriage to LH. [ 2 ] The Applicant is seeking child support retroactive to September 1, 2011 based upon the Respondent’s actual Guidelines income.

Her position is that the Respondent should be required to top-up the s 3 monthly amount that the children’s natural father LH was ordered to pay in 2002. She is therefore agreeable to setting off against the Respondent’s s 3 monthly payments the amount of $284.

[ 3 ] In the alternative, according to her Concise Statement dated March 25, 2021, the Applicant is seeking that the Respondent pay his s 3 contribution, minus LH’s s 3 obligation during the time that the children were living in her care, plus 33% of the children’s s 7 expenses, minus LH’s contribution towards the children’s s 7 expenses. [ 4 ] In support of the Application, the Applicant filed an Affidavit, sworn May 28, 2020 (“Applicant’s Affidavit”) and a Reply Affidavit, sworn March 16, 2021 (“Reply Affidavit”).

In response, the Respondent filed an Affidavit sworn February 25, 2021 (“Respondent’s Affidavit”). [ 5 ] The Respondent is seeking a dismissal of the Application on the basis of unreasonable delay. [ 6 ] This matter was heard before the late Honourable Mr. Justice Hopkins on April 15, 2021, who reserved his decision. After his unexpected passing, at the request of Associate Chief Justice Nielsen, and pursuant to Rule 13.1 of the Alberta Rules of Court , Alta Reg 124/2010 , I agreed to consider the Application on the basis of the record and the evidence that was before Justice Hopkins .

Both counsel agreed to this procedure without the requirement for further submissions. [ 7 ] Counsel for the Respondent was opposed to the admission of the Applicant’s Reply Affidavit, and in particular paragraphs 2 to 20, on the basis that the Reply Affidavit did not comply with Practice Note 2. After hearing from the parties’ respective counsel, Hopkins J determined not to strike the Reply Affidavit in its entirety or paragraphs 2 to 20. Instead, his Lordship advised he would disabuse his mind of what he read in those specific paragraphs.

I have done the same. [ 8 ] For the reasons which follow, the Application is allowed in part. Background [ 9 ] The Applicant was previously married to LH. They had two children together, namely DNH (age 25) and TNH (age 22).

Following the dissolution of her marriage to LH, Justice Watson (as he then was) granted a Divorce Judgment and Corollary Relief Order on October 29, 2002 (“2002 Corollary Relief Order”), which provided that LH, who is the natural father of DNH and TNH, was to pay s 3 child support to the Applicant in the amount of $284 per month, based upon a Guidelines income of $19,018.24, together with $220 per month towards s 7 child care expenses.

The Applicant has not had contact with LH for many years and, for the reasons outlined by counsel for the Applicant during the hearing of the Application, has not pursued the child support that was ordered by Watson J nor has LH paid any of the amounts ordered. [ 10 ] The parties in this Application were married on December 15, 2006 and separated on or about September 1, 2011. [ 11 ] The evidence of the parties differ as to whether or not the Respondent had contact with DNH and TNH after the parties separated.

The Applicant claims he saw them regularly post-separation until she mentioned the subject of child support in or about December 2011. The Respondent claims he didn’t see TNH again after the separation, and only saw DNH once outside of a shopping mall. [ 12 ] In her Statement of Claim for Divorce, filed December 29, 2011 (“Claim”), the Applicant sought retroactive and ongoing child support of $1,013 per month from the Respondent for DNH and TNH. [ 13 ] The trial was heard by Justice Sulyma on March 3, 4 and 5, 2014.

In the Divorce Judgment and Corollary Relief Order granted March 5, 2014 (“2014 Corollary Relief Order”), Sulyma J dismissed the Applicant’s application to have the Respondent found in loco parentis, under s 2(2) of the Divorce Act, RSC 1985, c 3 (2 nd Supp ), as well as her claim to have the Respondent pay retroactive and ongoing child support for DNH and TNH. She also awarded costs against the Applicant. [ 14 ] The Applicant appealed the trial decision. The appeal was heard on November 24, 2014 and a decision was rendered by the Alberta Court of Appeal on December 16, 2014.

The Court of Appeal reversed Sulyma J’s decision with respect to her finding that the Respondent did not stand in loco parentis to DNH and TNH. The matter was remitted back to the Court of Queen’s Bench for a determination of the issue of the quantum of child support payable. [ 15 ] For almost six years, the Applicant did not take any steps to have the quantum determined by the Court of Queen’s Bench nor did she directly request any child support from the Respondent.

On his part, the Respondent did not make any voluntary child support payments. [ 16 ] According to the Respondent, the Applicant did not contact him after the Court of Appeal rendered its decision in late 2014. Then, in or about June 2020, the Applicant contacted the Respondent advising him of her intention to apply for child support. On September 22, 2020, the Applicant filed the aforementioned Application seeking ongoing and retroactive child support for DNH and TNH. Questioning on Affidavit [ 17 ] On January 20, 2021, the Applicant was questioned on her Affidavit.

As of the date of the hearing of the Application, I understand that 8 out of 20 undertakings remained outstanding. [ 18 ] At paragraph 21 of the Respondent’s Affidavit he outlined what he considers to be key admissions made by the Applicant during her Questioning. I have added to and modified these admissions based upon my own review of the transcript. I summarize the admissions and key information provided during the Applicant’s Questioning as follows:

(

a) The last time that the Respondent saw DNH and TNH was sometime after the parties separated (they separated on September 1, 2011); (

b) The Applicant relocated to Lowell, Massachusetts in or about August 2014, approximately two months after DNH completed high school at the Victoria School of Arts; (

c) The Applicant intends to obtain permanent resident status in the United States for herself and her children; (

d) The Applicant did not advise the Respondent in advance that she was re-locating to the United States with her children, nor did she seek his prior consent; (

e) Since the Applicant moved to the United States with the children, she has not attempted to arrange any kind of visits between the Respondent and DNH and TNH; (

f) Until approximately one month before the Applicant’s Questioning when they apparently sent him some letters, DNH and TNH had not made direct contact with the Respondent. (

g) DNH applied for universities located in both Canada and the United States. The Applicant admitted the costs associated with obtaining a post-secondary education in the United States is significantly more expensive than in Canada; (

h) DNH commenced his post-secondary education in August 2014 at the University of Massachusetts (UMass) in Dartmouth. He attended this university for three semesters until December 2015. Thereafter, he attended Middlesex Community College for one semester commencing January 2016. The Applicant originally indicated DNH changed schools because they could no longer afford the university’s fees. She later admitted DNH had been struggling at UMass. Commencing in September 2016, DNH attended Rowan University in Glassboro, New Jersey until he graduated with his undergraduate degree during the summer of 2019; (

i) The Applicant advised that after he graduated from Rowan University, during the summer of 2019, DNH lived in Edmonton and was studying for the MCAT. However, the MCAT is generally taken well in advance of commencing medical school and the acceptance letter from Ross University is dated March 21, 2019, with a commencement date of September 2, 2019; (

j) In August 2019, DNH commenced medical school at Ross University in Barbados. As at the date of her Questioning, DNH was in his second year. He will likely be completing his medical degree back in the United States, but the location of the medical school is uncertain. The Applicant indicated that they did not have the funds for one of DNH’s semesters and that is why he will not be completing his second year until December 2021. During the semester that DNH did not attend medical school, he remained in Barbados, he did not work because he is not allowed to work in Barbados; (

k) DNH wishes to practice medicine in the United States; (

l) DNH worked with a friend for a few months during the summer of 2019 while in Edmonton and while studying for the MCAT. He was working at a contracting company doing insulation. Later in her Questioning, the Applicant said that whenever DNH is in Canada, he is always working. She also indicated that he spent a summer at the Royal Alexandra Hospital, but she was not sure when this was and she did not indicate whether it was paid employment; (

m) DNH volunteers at the Massachusetts General Hospital; (

n) The Applicant believes DNH will be paid a stipend (or some other form of payment as a resident) when he returns to the United States to complete his medical school during his third or fourth year; (

o) The Applicant used the RESPs that had been saved up for DNH and TNH’s education, which totalled between $5,000 and $6,000, to finance the legal fees associated with her appeal to the Alberta Court of Appeal; (

p) DNH received over $90,000 in student loans from Sallie Mae and a further $20,000 from Alberta Student Aid to finance his education in the United States; (

q) The Applicant has contributed $20,000-$22,000 USD out-of-pocket towards DNH’s post-secondary education. She took out a loan to pay for DNH’s first semester at UMass; (

r) The Applicant covers all of DNH’s living expenses because these are not covered by his student loans. The loans do cover his housing; (

s) TNH went to Middlesex Community College in 2015 and 2016. Commencing in the fall 2016, she went to the University of the Arts. Thereafter, she went to Harvard Extension School for two-three semesters. In 2018, she transferred to York University in Toronto, Ontario; (

t) TNH will graduate with a double major in sociology and theatre from York University in June 2022. TNH does not know what she wants to do after she graduates; (

u) TNH has never worked since turning 18 years of age. She does theatre productions during her summer holidays from school, without remuneration, because she is not allowed to work in the United States; (

v) TNH received $50,275, and a further $15,089 in student loans from Sallie Mae. She also received student loans from Alberta and a scholarship for the University of the Arts; (

w) The Applicant did not obtain the consent of the Respondent before incurring non-post-secondary related s 7 expenses for the children;

(

x) LH has not assisted with the payment of DNH and TNH’s post-secondary expenses; (

y) The Applicant applied for her divorce from LH, child support and custody of the children herself, which I take to mean without the assistance of a lawyer; (

z) The Applicant did not register the Divorce Judgment and 2002 Corollary Relief Order with the Maintenance Enforcement Program; (aa) LH made a couple of child support payments. After their marriage was annulled, the Applicant did not take any steps to collect child support from LH. She does not know the amount he owes in arrears of child support; (bb) The Applicant is not making a similar application for child support from LH; (cc) The Applicant did not pursue the issue of child support after the Alberta Court of Appeal rendered its decision.

She did not request child support from the Respondent; and (dd) The Applicant was ordered to pay the Respondent costs in the amount of $9,236.92. She undertook to advise how much of the costs she had paid to date. Position of the Parties [ 19 ] The Respondent is seeking an Order dismissing the Application on account of unreasonably delay, with costs on a solicitor and his own client basis.

He contends the delay is unreasonable and that he has been prejudiced by the delay. [ 20 ] In addition, the Respondent submits that he does not have the financial means to pay a retroactive child support award and that such an award would cause him undue hardship. He also points out that he has not engaged in any blameworthy conduct that would lend itself to a retroactive child support order. [ 21 ] The Respondent further submits that any child support obligation he may have should be secondary to the obligation of LH, the children’s biological father.

He argues he has been prejudiced by the Applicant’s failure to seek child support from LH. [ 22 ] The Applicant essentially contends the Farden factors have been satisfied in the circumstances of this case. Both children are diligently pursuing post-secondary degrees. Employment income and student loans have not been sufficient to meet their educational expenses. Given the income of the parties, the children should not be required to obtain maximum student loans to facilitate their post- secondary education. Issues [ 23 ] The Application raises the following issues: a.

Can the Court order retroactive child support in the circumstances of this case? b. Should this Court order retroactive s 3 child support? c. If so, what is the commencement date for retroactive s 3 child support? d. Is this an appropriate case for awarding time limited s 3 child support? e. How should the s 3 child support obligations be apportioned as between the Respondent and LH, the children’s natural father? f. Should the Respondent pay s 3 child support after each child turned 18 years of age? g.

Is the Respondent obliged to pay anything towards the children’s s 7 expenses from 2011 to date, including towards their post- secondary expenses? Law and Analysis (

a) Can the Court order retroactive child support in the circumstances of this case? [ 24 ] Section 15(1) of the Divorce Act provides: 15.1

(1) 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. [ 25 ] A “child of the marriage” is defined in s 2(1) of the Divorce Act as 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;

[ 26 ] Section 2(2) clarifies:

(2) For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes (

a) any child for whom they both stand in the place of parents; and (

b) any child of whom one is the parent and for whom the other stands in the place of a parent. [ 27 ] Here the Respondent was found by the Alberta Court of Appeal in December 2014 to stand in the place of a parent. [ 28 ] The “age of majority”, as defined in s 2(1) of the Divorce Act , means in respect of a child, means the age of majority as determined by the laws of the province where the child habitually resides, or, if the child habitually resides outside of Canada, eighteen years of age; [ 29 ] As in the case Friesen v Friesen , 2020 ABQB 103 [ Friesen ], there is no prior court order or agreement dealing with the quantum of child support payable and therefore, this is an application for an historical original award of s 3 child support as opposed to an application to retroactively vary an existing child support order. [ 30 ] In DBS v SRG , 2006 SCC 37 [ DBS ], the Supreme Court of Canada interpreted s 15.1 of the Divorce Act as precluding a court from granting an order on an original application for retroactive child support unless the child beneficiary is a “child of the marriage,” as defined in the Divorce Act , when the application is made. [ 31 ] Bastarache J discussed the situation of awarding retroactive child support on an original application at paras 80 to 84: 80 Unlike the previous two situations, in this third one, the status quo does not involve any existing payment of child support.

This fact immediately differentiates the present context in a very important way: absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children. The non-custodial parent’s interest in certainty is generally not very compelling here. 81 Jurisdiction to award retroactive child support in this circumstance is found in s. 15.1 of the Divorce Act and s. 16 of the Parentage and Maintenance Act .

In the Alberta statute, the legislature simply decrees that an order may be made for payments for the maintenance of the child. Similarly, in the Divorce Act , Parliament allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage”: s. 15.1(1) . There is therefore no restriction in either statute as to the date from which the court may order that the award take effect. 82 In my view, the legislatures left it open for courts to enforce obligations that predate the order itself. This

interpretation is consistent with the Guidelines , which are meant to “establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation” ( s. 1 ( a )).

So long as the court is only enforcing an obligation that existed at the relevant time, and is therefore not making a retroactive order in the true sense, I see no reason why courts should be denied the option of making this sort of award. 83 It is true that the term “retroactively” is absent from s. 15.1 of the Divorce Act , while Parliament used this explicit wording to demonstrate its intention in s. 17 . But I believe this drafting choice can be explained based on my reasoning above.

Neither in the case of a retroactive variation order nor in the case of a retroactive original order is the court creating a new obligation for the payor parent and applying it after the fact. However, in the case of a retroactive variation order, the original order itself is indeed being varied retroactively: in the strictest, literal sense, the court order that stated a certain amount was due on a certain date is now being altered — after that date has passed — to state that a greater amount was due.

The obligation to pay the greater amount was always present, but the original order had to be changed to reflect that. This feature is not present in the case of retroactive original orders.

It is for this reason that I believe Parliament felt it unnecessary to resort to language permitting retroactivity. 84 As is the case for awards varying existing court orders and awards altering previous child support agreements between the parents, courts will have the power to order original retroactive child support awards in appropriate circumstances. [ 32 ] In the circumstances of this case, DNH and TNH are currently over the age of majority. However, at the time the Applicant commenced her Claim, being December 29, 2011, seeking retroactive and ongoing child support, DNH was 15 years old and TNH was 13.

They were therefore both under the age of majority for Alberta and a “child of the marriage” as defined in s 2(1)(

a) of the Divorce Act . [ 33 ] I therefore conclude this Court has the jurisdiction to make a retroactive original order of child support for DNH and TNH: DBS at paras 88, 89 and 150 ; Brear v Brear , 2019 ABCA 419 at paras 23 , 25 and 32 [ Brear ]; Calver v Calver , 2014 ABCA 63 at paras 26 , 28 and 33; and Friesen at para 32 . [ 34 ] The Supreme Court advised at para 132 of DBS : “Once parents are in front of a court with jurisdiction over their dispute, that court will generally have the power to order a retroactive award that enforces the unfulfilled obligations that have accrued over time.” (

b) Should this Court order retroactive s 3 child support? [ 35 ] Similar to the circumstances in Friesen , this case presents three unique factors. First, the child support claim is based on the Respondent standing in loco parentis . Thus, child support is not presumed as in the case of a biological parent. Second, a long period of time passed between the date of separation and the date of the hearing of this Application.

Although the Alberta Court of Appeal remitted the issue of child support back to the Court of Queen’s Bench in December 2014 for a determination of quantum, the Applicant did not take any steps to have quantum determined. Finally, as noted above, DNH is now 25 years old and TNH is 22 years old, and there is a

question as to whether either or both remain a child of the marriage and therefore whether they are currently entitled to child support. [ 36 ] The test for ordering retroactive child support was enunciated by the Supreme Court of Canada in DBS , helpfully summarized in numerous Alberta decisions, including in Brear ; SLW v WNW , 2017 ABQB 772 at para 5 ; and Damphouse v Damphouse , 2020 ABQB 101 [ Damphouse ]. [ 37 ] Justice Bastarache set out four factors to guide the Courts’ discretion in determining whether to award retroactive child support, and if so, how far back: 1. The recipient parent’s reason(

s) for delaying their application for child support; 2. The conduct of the payor, and whether the payor engaged in “blameworthy conduct”; 3. The circumstances of the child; and 4. Any hardship occasioned to the payor parent by a retroactive award. [ 38 ] These factors were recently considered by the Supreme Court in Michel v Graydon , 2020 SCC 24 (para 29 , per Brown J; paras 109-26, per Martin J) [ Michel ] and applied in the context of applications for historical child support. [ 39 ] The Supreme Court in DBS also enunciated a number of salient principles applicable to child support generally.

For example, the Supreme Court confirmed child support is the right of the child and explained the payor parent is always under a free-standing legal obligation — independent of any court order — to pay child support commensurate with income: DBS at para 68 . The Supreme Court also advised child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together: DBS at para 38 .

See also: Michel at para 10 and Brear at para 18 . [ 40 ] I will now turn to an analysis of each of these four factors, bearing in mind that none of these factors, taken individually, are determinative of the analysis. Rather, they should be viewed holistically in light of all the circumstances: DBS at para 99 ; Goulding v Keck , 2014 ABCA 138 at para 121 [ Goulding ]; and Friesen at para 35 . I rely heavily upon the analysis of Loparco J in Friesen who dealt with a similar application for historical child support in the context of an adult child and a parent who stood in loco parentis. (

i) Reason for delay [ 41 ] This factor requires the Court to consider why a claimant waited to bring an application for historical or retroactive child support. A delay, in and of itself, is not inherently unreasonable: Michel at para 113 . [ 42 ] According to the Applicant’s Affidavit, she hired her current lawyer in January 2017 to commence an application seeking retroactive and ongoing child support.

While she was able to pay the retainer, she had financial difficulties, which resulted in her application being delayed as she could not fund the litigation. [ 43 ] At the hearing of the Application, counsel for the Applicant suggested the fact that the Applicant moved to the United States following the trial and was struggling financially to support her two children, on her own, on a salary of approximately $50,000, without financial assistance from either the Respondent or LH, contributed to the delay.

He submitted self-representing from the United States was not practical and further that after she had paid the retainer, the Applicant struggled to keep paying the costs of having the matter move forward.

Counsel contended the Applicant and the children should not be punished for not having the financial resources to bring this matter to the Court sooner. [ 44 ] It is the position of the Applicant that the onus for the delay should be shared as the Respondent knew he had a support obligation in light of the Court of Appeal’s December 2014 decision finding him to be in loco parentis. [ 45 ] The Respondent, on the other hand, is seeking an order dismissing the Application on account of unreasonable delay. [ 46 ] Lema J provides a comprehensive

summary on reasonable excuses for delay in SMF v BWF , 2019 ABQB 806 [ SMF ]. Part of his

summary is excerpted from Justice Renke’s decision in McCarty v McCarty , 2016 ABQB 91 [ McCarty ]. In McCarty , at paras 163- 166 , Renke J set out the key principles in assessing reasonable and unreasonable delay: 163 According to Justice Bastarache, “[t]he circumstances that surround the recipient’s choice ... not to apply for support earlier will be crucial in determining whether a retroactive award is justified:” DBS at para 100 . The “circumstances” involve the applicant payee spouse and the payor spouse.

A “reasonable excuse” would be a delay based on reasons or on rationally defensible considerations. “Unreasonable delay” is a delay for no reasons or inadequate reasons; it is “arbitrary” delay: DBS at para 101 . 164 Reasons for delay may be personal to the payee spouse. These could include (

i) a lack of financial means to bring an application; (ii) a lack of “emotional means” to bring an application; (iii) inadequate legal advice; or (iv) lack of knowledge or information about the payor's financial status. DBS at paras 101, 103 . Reasons for delay may be based on the relationship between the payor and payee spouse, including

(v) “justifiable fear” that a payee spouse will react vindictively to an application, to the detriment of the family; (vi) pressure or intimidation of the payee spouse by the payor spouse. DBS at paras 101, 102 . Reasons for delay may be based on the conduct of the payor spouse (linking this factor to the next factor), including: (vii) failure by the payor parent to inform the payee parent of income increases in a timely manner (thereby contributing to the payee’s lack of knowledge). ... 166 In any event, even a finding of unreasonable delay does not eliminate a child’s right to enhanced support.

The right is the child’s and cannot be “waived” by the payee parent. Unreasonable delay is just one factor considered in determining the appropriate balance between the payor parent’s interest in certainty and the child’s interest in adequate support: DBS at para 104 . [ 47 ] In Michel , Martin J in her concurring judgment recognized there are many reasons why a recipient parent may delay bringing an application for historical child support (paras 41 and 111). These may include lack of information regarding the payor’s income.

Martin J also spoke of delay in the broader social context, considering issues such as intimate partner violence and access to justice due to the high cost of litigation. She noted that delay is not itself “inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted” (para 113). [ 48 ] In Martin J’s view, the focus should be on whether the reason provided is understandable, not whether there is a “reasonable excuse” for the recipient parent’s delay.

This is because the wording used in DBS works to implicitly attribute blame onto parents who delay applications for child support. See: Michel at para 111 . [ 49 ] Of relevance to this case are Martin J’s comments at para 114 in regards to an application for historical child support, after a child has ceased to be a “child of the marriage,” as defined in s 2(1) of the Divorce Act : Courts may pay particular attention to the length of the delay after the beneficiary ceased to be a “child” or “child of the marriage” or after the reason that caused the delay has ceased to be.

The longer this delay, the more weight may go against the justification ( Dring , at para. 177, per Hunter J.A.). This tends to uphold the values of certainty and finality, with the goal of encouraging parties to move forward with their lives following family breakdown (see Colucci , at para. 28). [ 50 ] Most recently, in Henderson v Micetich , 2021 ABCA 103 [ Henderson ], the Alberta Court of Appeal stated at para 44: Any delay on the part of a recipient parent must be viewed in light of available information, resources, and social context, including gender, social and economic inequities.

Given the structure of the Guidelines and the well understood, and now widely accepted, philosophy that child support is an obligation on the part of both parents, the amount of which depends on the payor’s income, there will be few cases where delay can be truly seen as unreasonable or a factor that should preclude the award of previously-owed support to children. [ 51 ] In SMF , at paras 35-36 , Lema J summarized Alberta cases which considered reasonable and unreasonable excuses for delay.

Reasonable excuses accepted by the courts included (citations omitted): • a lack of communication between payor and recipient, and the costs of litigation; • unsuccessful efforts to obtain financial disclosure, along with the recipient’s weak financial position; • a mediation process failing, plus the time required for the variation application to take place; • recipient experiencing emotional distress and going into debt because of limited employment, child support costs and schooling costs. [ 52 ] Some relevant examples of unreasonable excuses included: • the cost of an application was not prohibitive; and • recipient had ample resources and access to family law counsel with whom she engaged regularly. [ 53 ] Turning to the case at bar, there was minimal delay between the date the parties separated (September 1, 2011) and the date the Applicant filed her Claim seeking retroactive and ongoing child support (December 29, 2011).

By all accounts, this delay was reasonable. [ 54 ] Between the date of her Claim and the date of the ultimate hearing of the trial (March 3, 4 and 5, 2014), the Applicant did not seek an interim child support order. Nevertheless, the litigation did progress. [ 55 ] The Applicant filed her appeal on April 15, 2014. [ 56 ] In or about August 2014, the Applicant and the children moved to Lowell, Massachusetts. [ 57 ] The Appeal was heard on November 24, 2014.

On December 16, 2014, the Alberta Court of Appeal determined the Respondent stood in loco parentis to DNH and TNH, and ordered that the issue of child support be remitted back to the Court of Queen’s Bench for a determination as to quantum. Notwithstanding, the Applicant took no formal steps until she filed the Application on

September 22, 2020 to have the issue of quantum determined. This is a period of delay of just under 6 years. [ 58 ] The Applicant was not a stranger to the process of seeking a court order for child support (having done so with the children’s natural father). It is evident from her Reply Affidavit that the Applicant understood a child support order had not been granted by a court and that the quantum of child support remained to be determined. [ 59 ] While I appreciate the financial difficulties that she was experiencing, the Applicant was able to finance her successful appeal of the 2014 Corollary Relief Order.

She was represented by legal counsel (Ms. Brooks Topp) at the hearing before the Court of Appeal on November 24, 2014. Her Reply Affidavit indicates that she retained her current lawyer Mr. Curtis Ready in February 2016. Moreover, the Applicant could have conceivably continued to pursue her Court of Queen’s Bench’s application as a self-represented litigant considering the only issue to be determined was that of quantum. She did not physically need to be in the Province of Alberta in order to have the quantum determined.

With leave of the Court, she could have appeared remotely for the hearing of the application. [ 60 ] On the other hand, I accept there was no communication between the parties from after the Court of Appeal decision until June 2020 when she first broached the subject with the Respondent. I further accept the Applicant had no specific knowledge or information concerning the Respondent’s income and financial situation. [ 61 ] On his part, the Respondent knew since December 2011 that the Applicant was seeking retroactive child support for DNH and TNH.

He further knew since December 2014, that the Alberta Court of Appeal had found him to be in loco parentis and had ordered that the quantum of child support payable should be determined by the Court of Queen’s Bench. The Respondent could not be said to be surprised by the Applicant’s child support claim, which was never withdrawn nor struck. After the Court of Appeal rendered its decision, arguably, he ought to have made some attempt to resolve the Applicant’s child support claim, even if on an interim without prejudice basis.

Instead, he chose to do nothing about resolving the issue. [ 62 ] As articulated by Loparco J in Friesen , at para 54 , the long delay of over 6 years between the date the Alberta Court of Appeal rendered its decision and the hearing of this Application and the fact that DNH and TNH are now over the age of majority, with DNH having turned 18 years of age in May 2014 and TNH in November 2016, raises legitimate concerns that a retroactive award will leave the impression that recipients can simply lie in the weeds and then collect a windfall, prejudicing the payor’s right to certainty and predictability.

It is evident from the transcript that during the hearing of the Application Hopkins J was attuned to the possibility of the Applicant experiencing a windfall. [ 63 ] However, in my view, this is mitigated to a certain extent, by the fact that DBS places the onus on both parents to ensure that the child receives the proper amount of support when needed: see DBS at para 59 and Henderson at para 44 .

Thus, I agree with counsel for the Applicant, once the Court of Appeal determined the Respondent stood in loco parentis , and therefore that he had some form of a child support obligation, neither parent can be complacent.

In the circumstances, I conclude the delay of approximately 6 years is not unreasonable and apportion the delay equally between the parties. (ii) Blameworthy conduct [ 64 ] Renke J in McCarty , provides a helpful analysis of blameworthy conduct at paras 181-187: 181 According to Justice Bastarache, the inquiry into the conduct of the payor parent, the issue of his or her “blameworthiness,” “approaches the same concerns as the last [factor] from the opposite perspective:” S. (D.B.) at para 105 .

Put another way, blameworthy conduct is conduct that induced a payee parent’s reasonable delay in pursuing a retroactive support award. Since blameworthy conduct is the complement of unreasonable delay, it follows that just as unreasonable delay will not bar a retroactive child support award, neither will the absence of blameworthy conduct. Blameworthy conduct “is not a necessary precondition for retroactively adjusting support:” Goulding v. Keck, 2014 ABCA 138 (Alta.

C.A.) at para 48 . 182 “Blameworthy conduct” on the part of a payor parent includes both conduct that would intuitively be classified as blameworthy and conduct that lacks malice, deviousness, or intention to avoid financial responsibility, but nonetheless has the effect of “privileging” the payor’s economic interests over those of his or her children contrary to the Guidelines . ... 184 S. (D.B.) , however, imposes a yet higher standard of conduct on payor parents. Justice Bastarache stated that “I believe courts should take an expansive view of what constitutes blameworthy conduct in this context.

I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support:” S. (D.B.) at para 106 ; and “[n]o level of blameworthy behaviour by payor parents should be encouraged:” S. (D.B.) at para 107 . ... 186 There is some tension between S. (D.B.) and Goulding v. Keck on the subjective/objective distinction applicable to blameworthiness assessments.

At para 108 of S. (D.B.), Justice Bastarache stated that “[w]hether a payor parent is engaging in blameworthy conduct is a subjective question.” However, the subjective belief must be objectively reasonable: “But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy.” ... Hence, to harmonize Goulding v. Keck and S. (D.B.) , for honest error to be blameworthy, it must be unreasonable error.

One might say that a payor’s honest belief that he or she is making legally-required child support payments is a necessary condition for a finding of lack of blameworthiness; but subjective belief is not sufficient. For a payor’s conduct not to be blameworthy, the payor must not only believe that he or she is abiding by legal obligations, but the payor’s belief must be reasonable. Conversely, blameworthiness may have a subjective basis (e.g. intentional hiding of income) or an objective basis, despite honest belief (a reasonable payor would have realized that obligations were not being fulfilled).

187 A reasonableness standard for blameworthiness makes sense, because blameworthiness is the complement of unreasonable delay.Both factors deal with reasonable and unreasonable conduct. [65] In Smith v Gulka, 2020 ABQB 32 at para 115 [Smith], Yungwirth J summarized the principles used to establish blameworthyconduct in DBS at para 37: 1. The court should take an expansive view of what constitutes blameworthy conduct; 2. Blameworthy conduct is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriateamount of support; 3.

Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if(s)he consciously chooses to ignore them; 4. Whether a payor parent is engaging in blameworthy conduct is a subjective question. However, objective indicators remain helpfulin determining whether a payor parent is blameworthy; 5.

Where there is a previous order for child support, the presumption that a payor parent is acting reasonably because they haveconformed to the order may be rebutted where a change in circumstances shows that the payor parent was no longer reasonable in relyingon the order and not disclosing a revised ability to pay; 6. A court should consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation.

Havingregard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child’s support in a way thatsatisfied his/her obligation, no retroactive support award should be ordered. [66] Further, at para 187 of Smith, Yungwirth J held that: “A reasonableness standard of blameworthiness makes sense, becauseblameworthiness is the complement of unreasonable delay.” [67] Even if either party’s conduct could be characterized as “blameworthy”, the Alberta Court of Appeal held in Goulding at para48 that “blameworthy conduct” is not required for a retroactive support order.

While the conduct of the payor is a relevant factor, it is nota necessary precondition for retroactively adjusting support. All of the circumstances must be considered: DBS at para 99, Michel atpara 119; and Kupsch v Kupsch, 2011 ABCA 286 at para 10. [68] As was the case in Friesen, this is a somewhat unique situation in that until the trial before Justice Sulyma, the partiesdisputed whether the Respondent stood in loco parentis to DNH and TNH. At the trial, Sulyma J concluded the Respondent did notstand in loco parentis. This conclusion was ultimately reversed by the Alberta Court of Appeal.

This case is thus distinguishable fromcases where child support is a clear obligation of a biological parent. [69] However, the Respondent was aware since December 2014 that he had been found by the Court of Appeal to be in locoparentis. The Court of Appeal did not indicate that entitlement to child support needed to be determined by the Court of Queen’s Bench;the Court directed that quantum be determined. [70] Overall, I find the Respondent’s conduct after the Court of Appeal rendered its decision in December 2014 to have beenblameworthy.

The Respondent could have voluntarily made without prejudice child support payments once it was determined that hestood in loco parentis. Instead he chose to ignore his child support obligations to DNH and TNH, likely with the hope that the Applicantwould not pursue child support from him as she had not pursued the child support that had been ordered to be paid by the children’snatural father LH. I find that the Respondent acted unreasonably by not paying any child support for DNH and TNH. He made anincome of over $80,000 in 2014, 2015, 2016 and 2018.

He privileged his own interests over DNH’s and TNH’s right to receive anappropriate amount of child support. [71] The Supreme Court of Canada recently said in Colucci v Colucci, 2021 SCC 24, at para 41, the child’s interest in a fairstandard of support commensurate with income is the core interest to which all rules and principles must yield. (iii) Circumstances of the child [72] As recognized by Martin J in Michel, a child’s needs may still be relevant in awarding and calculating retroactive childsupport (para 120).

Martin J explained at para 120: If there has been hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour notonly of an award but also of extending the temporal reach of the award.

This factor may play a particular role in applications forhistorical child support. [73] Martin J clarified at para 122 that any kind of need or hardship is not a necessary antecedent to an award for retroactive childsupport. [74] The Alberta Court of Appeal addressed evidential issues bearing on this factor in Goulding at paras 51 and 52: … DBS does not impose an evidentiary burden on the recipient parent to prove “significant need” on the part of the child in order tosucceed in an application for retroactive support.

A payor parent cannot avoid a retroactive award by arguing that, despite his or her pastdefault, the recipient parent was able to sufficiently care for the child on his or her own (Swiderski v Dusseault, 2009 BCCA 461, 98 BCLR (4th) 40 at para 42). The “needs” of the child must be approached through a more specific inquiry: did the child receive the same benefits and support as if heor she had been supported by both parents? To answer this question, a loss of benefits must be presumed where the payor parent has

failed to pay the amount of support required under the Guidelines over a period of time ( Burchill v Roberts at para 49). The payor parent is not entitled to choose the form or means of support given to his or her children ( Swiderski v Dusseault at para 39 ). However, it will be open to the court to consider whether the child did benefit from some form of financial support over and above that which the recipient parent could provide alone, either from the payor parent or through some other means.

This consideration, however, is not determinative. [ 75 ] In regards to whether DNH and TNH suffered hardship as a result of the Respondent’s failure to pay child support from the period of separation until the date each turned 18 years of age, monthly budgets totalling $1,090 each, dating back to September 2011, for DNH and TNH were attached as Exhibit “E” to the Applicant’s Affidavit. They include amounts for travel, extracurricular, leisure activities, miscellaneous and a cell phone.

The budgets do not indicate what needs were unmet. [ 76 ] Counsel for the Applicant submitted during the hearing of the Application that the children currently struggle financially to meet their monthly needs. He advised they have incurred significant student debt. The evidence substantiates this debt load. [ 77 ] Evidence was also provided with respect to DNH’s and TNH’s living expenses while attending university. Monthly budgets for the period August 2014 to 2020 were also attached as Exhibit “E” to the Applicant’s Affidavit.

Again, the budgets do not indicate what needs were unmet. [ 78 ] During her Questioning, the Applicant indicated that DNH had to stop attending UMass because they could not afford the university’s fees. As well, he missed a semester of medical school in Barbados because they did not have the funds to enable him to attend. (

i) Undue hardship [ 79 ] The Respondent contends he has been prejudiced by the Applicant’s “unreasonable” delay in seeking child support and that he does not have the financial means to pay a retroactive child support award. He argues such an award would cause him financial hardship. [ 80 ] Martin J in Michel explained, at para 124 , the undue hardship factor: This factor takes into account the ease with which the payor might be able to pay the award.

If the award would cause the payor undue hardship, and if the other factors do not militate against it, this factor may weigh against an award or affect its temporal scope to achieve a fair result. It is not necessary that there be no hardship caused by the award for it to be granted.

If there is the potential for hardship on the payor’s part, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of undue hardship. [ 81 ] Martin J continued at para 126: Thus, the hardship caused to the child and the recipient parent from non-payment is also a crucial part of the equation. With historical awards, there may be a longer period of unpaid child support, resulting in larger amounts and greater hardship on all sides.

All of which increases the need to see the full picture and assess hardship based on all the circumstances. [ 82 ] Justice Renke in McCarty summarized the approach for determining whether a retroactive child support award could cause hardship to a payor parent at paragraphs 226 to 227: As Justice Bastarache observed in DBS at para 115 that retroactive awards may have adverse financial consequences for payor parents that prospective awards do not: 115 ...

For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlike prospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet.

On this point, courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children. In short, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact. But as the Court of Appeal emphasized in Goulding v Keck at para 57 , a finding of hardship requires an evidential foundation.

Hardship cannot be not simply assumed, presumed, or asserted: [57] Hardship, however, is not an abstract or impressionistic concept to be asserted by a payor in an effort to avoid a retroactive award. To weigh against granting retroactive child support, the payor parent must establish real facts from which a reasonable finding of serious hardship could be made. A bald or vague assertion of hardship is not sufficient. The obligation to pay support at the Guidelines amount for a prior period is not a hardship (Greene at para 87).

The payor does not suffer hardship by having to pay money which he or she may otherwise owe. Further, [58] Even where hardship is established, courts have broad discretion to mitigate hardship to the payor through a structured payment plan. Indeed, statutory regimes provide judges with discretion to structure child support awards as a lump sum, a series of periodic payments, or a combination of the two: see, e.g.,

section 11 of the Guidelines . [ 83 ] The Respondent has made a bald or vague assertion of hardship; this is not sufficient. To weigh against granting retroactive child support, the Respondent must establish real facts from which a reasonable finding of serious hardship could be made. He has failed to do so on the evidence before this Court. [ 84 ] The evidence shows that at least since 2014, he has had a steady income that has fluctuated between approximately $68,000

annually and $83,000 annually. In 2020, his income was $73,761. The Respondent’s Affidavit indicates that he owns a modular home which has little equity and two vehicles. He also has $6,000 in RRSPs.

The evidence does not establish that making an award of retroactive child support will cause the Respondent any undue hardship. [ 85 ] As well, particularly as this is an application for historical child support, any financial hardship occasioned by the Respondent’s failure to pay child support is also an important consideration. [ 86 ] Based on a global assessment of the DBS factors, I am satisfied that awarding a portion of the retroactive child support sought by the Applicant is appropriate in this case. I now turn to a determination of the commencement date and quantum of child support. (

c) What is the commencement date for retroactive child support? [ 87 ] The majority in DBS suggested that the date of retroactivity should generally be the date of “effective notice” (para 118). At para 121, the Court defines “effective notice” as “... any indication by the recipient parent that child support should be paid ... effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached.” [ 88 ] The majority of the Supreme Court noted, however, that recipients should be encouraged to move discussions forward after giving effective notice.

To that end, the majority concluded that retroactive awards should generally extend no further than three years before the date of formal notice.

This is known as the presumptive “three-year rule.” [ 89 ] The Supreme Court in DBS did not define precisely what it meant by “formal notice.” However, in Kerr v Baranow , 2011 SCC 10 at para 210 [ Kerr ] , the Court held that: “... commencement of proceedings provides clear notice to a payor spouse of the claim for retroactive and current spousal support.” As the Court in Kerr , albeit dealing with retroactive spousal support, relied on the principles in DBS , I find this statement can also provide guidance for both child and spousal support claims. [ 90 ] As did Loparco J in Friesen , I conclude that a Statement of Claim or Counterclaim (being a commencement of proceedings) provides clear and formal notice of a party’s claim for support. [ 91 ] According to paragraph 27 of the Reply Affidavit, the Applicant gave effective notice to the Respondent that she wanted him to pay child support for DNH and TNH in or about December 2011.

According to the documents contained in the court file, the Respondent was served with the Applicant’s Claim seeking retroactive and ongoing child support, commencing the date of separation (September 1, 2011), on February 14, 2012. He thus received formal notice of the Applicant’s child support claim on February 14, 2012. September 1, 2011 is well within the three-year rule. [ 92 ] The Applicant’s original child support claim continued to be advanced to the date of trial before Justice Sulyma notwithstanding the fact that she did not apply for interim child support. [ 93 ] Bearing in mind Yungwirth J’s

summary in Smith of the general rules in DBS regarding how far back a court can go in awarding retroactive child support (para 115), as the date of separation in this case is within the three-year window prior to the date of formal notice, I conclude I have jurisdiction to make an order requiring that the Respondent pay child support dating back to the date of separation without requiring an analysis of whether there was any blameworthy conduct on the Respondent’s part ( DBS at para 123 ). [ 94 ] However, given the extended period of time since the Claim was filed, the delay between the date the Court of Appeal rendered its decision and the date the Applicant commenced the Application, and the fact that DNH is now 25 years of age and is pursuing his second university degree, and TNH is now 22 years of age, a global analysis of the fairness and reasonableness of awarding the full amount of retroactive child support sought by the Applicant is required.

This analysis necessarily includes a consideration of whether DNH and TNH each remained a child of the marriage after turning 18 years of age. [ 95 ] As stated in DBS at para 130 : “Unless a statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case.” (

d) How should child support be apportioned as between the Respondent and LH? [ 96 ] As the Respondent stood in loco parentis to DNH and TNH, the quantum of child support owed is a matter of discretion, taking into consideration the Federal Child Support Guidelines, SOR/97-175 ( Guidelines ) and the amount payable by the children’s natural father LH. [ 97 ]

Section 5 of the Guidelines provides: Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the Court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child. [ 98 ] Referring to Read J’s decision in Reis v Thompson , 2009 ABQB 156 at para 34 [ Reis ], Macklin J in Snow v Snow , 2013 ABQB 146 [ Snow ], agreed the wording of s 5 of the Guidelines creates a hierarchy of support whereby the obligations of those standing in the place of a parent are secondary to those of the natural parents.

Macklin J concluded: “[t]he biological parents and those in loco parentis all owe a joint and several duty to provide a fair standard of support for the child” (para 32). [ 99 ] In Vongrad v Vongrad , 2005 ABQB 52 [ Vongrad ], Marceau J noted courts across the country have grappled with how to properly apportion child support since the Guidelines provide courts with discretion in determining what a step-parent’s obligations are, but do not provide assistance in how to determine what is appropriate (para 20). See also: Pittillo v Pittillo , 2012 ABQB 109 at para 11 [ Pittilo ].

[ 100 ] At paragraphs 23 to 30, Marceau J canvassed the various approaches Canadian courts have taken in determining the appropriate amount of child support payable by a step-parent and ultimately settled upon using a needs-based approach.

Marceau J suggested “the step-parent may be required to put the child back in the position he would have been in had the relationship not broken down” (para 33). [ 101 ] In Snow , citing Vongrad , Macklin J determined “the Court must ensure that appropriate support is paid so that the child can enjoy, where possible, a standard of living that is reasonable, taking into account the standard that the child was, or should have been, enjoying” (para 35). At para 52, Macklin J suggested a “top up” approach could be employed.

That is, if the child support obligation of the parent found to be in loco parentis exceeds the amount payable by the natural parent(s), the parent in loco parentis would be responsible to “top up” the child support to a maximum of the Guideline amount payable by that parent based on his or income. [ 102 ] In JS v DS , 2005 ABQB 4 , the biological father was not paying child support and the child’s mother had no desire to seek support from him.

Sanderman J held it was unfair for the defendant to bear the entire responsibility of the child and ordered that the biological father and the defendant should share the support obligations to the child. The defendant’s child support was reduced in half from the Guideline amount of $330 per month to $165 per month. [ 103 ] In Reis , Read J concluded the proper approach was to first determine the amount that the step-parent should pay according to the prescribed Guidelines . The next step is to determine the legal liability of any other parent including both custodial and non-custodial parents.

If the total amount of the contribution by other parents is sufficient to provide a fair standard of support for the child, then the legal duty of the step-parent may not require him to pay any support, or perhaps only nominal support.

However, if the financial contributions of the other parents are insufficient to provide a fair standard of support for the child, then the step-parent may be required to top up those funds to the amount that the step-parent would be required to pay in accordance with his or her obligation under the Guidelines : Reis at paras 40-50 and authorities cited therein. [ 104 ] In Pittillo , Lee J found for the reasons outlined in para 15 that the biological father’s obligation to the wife’s child was irrelevant.

Lee J noted the wife had long lost contact with the biological father, and had no means of ascertaining his whereabouts. Lee J, however, did accept that the husband was only expected to contribute to the extent of the standard of living that the child experienced while living with him, during which time he had an income of $14,000 and was retired. He ordered that the husband pay child support of $137 per month. Lee J opined it was not manifestly unfair for the husband to continue his Guideline payments of $137 per month into his 70’s should the child enter post-secondary studies.

It should be noted that in Pittillo the husband continued to have a relationship with his step-child post-separation. [ 105 ] Turning to cases outside of Alberta, according to the British Columbia Court of Appeal in UVH v MWH , 2008 BCCA 177 [ UVH ], once the duty of the natural parent is determined, a court can move on to deal with the step-parent’s obligation. The Court concluded that given the child-centered focus of the Guidelines , primacy is given to the child’s standard of living.

In UVH , at para 42 , this meant topping up child support to ensure the child continued to enjoy the high standard the child had enjoyed while living with the step-parent. [ 106 ] In HJH v NHH , 2004 BCSC 179 , the Court exercised its discretion and ordered that the step-parent pay no child support.

That case involved a short marriage that lasted only three years, the defendant’s relationship with the child broke down after about the first six months of separation, the child had no ongoing relationship with the defendant and the plaintiff did not support such contact, the defendant paid Guidelines child support for the two children of his previous marriage and had a modest income, and the biological father was paying child support for the child. [ 107 ] In Swindler v Belanger , 2005 SKCA 131 , the biological father of the child lacked an income and was not providing any monetary support to the child.

Nonetheless, the Court ordered that the defendant, who stood in the place of a parent, only had to pay 50% of the Guidelines amount as the Court apportioned his responsibility to be 50%. [ 108 ] Here, the only evidence this Court has of the standard of living that DNH and TNH were accustomed to while the parties were married is evidence that the Respondent had an income of $35,500 in 2011.

In 2012, his income was $19,500, in 2013 it was $14,000, in 2014 it was $81,406.30, in 2015 it was $83,167.73, and in 2016 it was $80,565.60. [ 109 ] Before taking into consideration the natural father’s obligation, using the 2011 version of the Federal Child Support Tables, I calculate the amount of child support payable by the Respondent until each child turned 18 years of age as follows: Period Payable Table Amount Payable Total Due September 2011 to December 2011 $500 4 x $500 = $2,000 2012 $315 12 x $315 = $3,780 2013 $168 12 x $168 = $2,016 January 2014 to May 2014 $1,165 5 x $1,165 = $5,825 June 2014 to December 2014 $702 7 x $702 = $4,914 2015 $718 12 x $718 = $8,616 January 2016 to November 2016 $694 11 x $694 = $7,634 Total $34,785 [ 110 ] Based upon this Court’s calculations, the total payable by the Respondent, on account of s 3 child support, for the period September 1, 2011 through to November 1, 2016, the month in which TNH turned 18 years of age, was $34,785. [ 111 ] The Application indicates the Applicant is simply seeking the Respondent’s s 3 child support obligation, minus the LH’s court ordered obligation of $284 per month, from September 1, 2011 forward.

She has not claimed an amount in the year 2013, presumably because LH’s obligation exceeded the Respondent’s obligation in that year. I note there is no evidence as to the extent to which LH’s income has changed since the 2002 Corollary Relief Order was rendered. [ 112 ] Here the parties were married for less than 5 years and therefore this was a relatively short marriage. Based upon the

Applicant’s evidence, since at least December 2011, the children and the Respondent have not had a relationship with each other. TheApplicant has not pursued the children’s natural father LH for the child support he was ordered to pay. [113] In addition, there was a delay of almost 6 years between the time that the Alberta Court of Appeal found the Respondent stoodin loco parentis and the date in which the Applicant commenced this Application for retroactive and ongoing child support. Fairnessdictates that I exercise my discretion and adjust the amount this Court has calculated to have been due by the Respondent.

In thecircumstances of this case it would be fair and reasonable to order the Respondent to pay 50% of the total amount calculated to be due upto each child turning the age of 18. 50% of $34,785 is $17,392.50. [114] I now turn to a consideration of the issue of whether child support should be time limited. (

e) Should the Respondent’s child support obligation be time limited? [115] In this case, the Respondent is not the natural father of DNH and TNH. He and the Applicant were married for less than 5years. He has had no relationship with DNH and TNH since at least December 2011. In the circumstances, would it be appropriate totime limit his s 3 child support obligation? [116]

Section 15.1(4) of the Divorce Act specifies: The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until aspecified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit andjust. [117] In Green v Green, 2011 ABQB 476 [Green], Graesser J indicated at para 33 he struggled: with the principle that a person who has a relatively brief marriage to someone who already has children and, acts as what Topolniski J.characterized as a “good step-parent” to the spouse’s child or children (in Shirley v.

Shirley, 2007 ABCA 281 (Alta. C.A.) at para. 3),thereby assumes an obligation to support the children to the end of their post-secondary education or longer if they have serious healthissues. [118] In Omeltchenko v Christopoulos, 2013 ABQB 33, Graesser J recognized, at para 38, that case law in Alberta did not appear tohave limited the duration of child support owed by step-parents for step-children. However, he opined short duration relationships shouldnot necessarily attract long-term child support obligations.

Graesser J cited the following Canadian cases where time limited childsupport was ordered: • Elliott v Elliott, 2001 BCSC 472, where the biological father was paying no support and the biological mother made no efforts toobtain that support from him. Although the Guidelines would have required a payment of $493 per month by the person standing in placeof a parent, the Court ordered a payment of $250 per month, for a period of two years. • deSousa v Wilkins, [2001] OJ No 5715 (Ont CJ), where the individual standing in place of the father was ordered to pay $144.50per month for a period of five years.

This amount was half of the Guidelines amount for the child. The individual had been involved inthe child’s life for five years. The Court held that this approach was consistent with the discretion given to the Court and overall fairness. • Collins v Collins, 2008 NLUFC 31, where the Court awarded $200 per month in child support even though the Guidelinesprovided for a higher amount. Support was to last a period of three and a half years from the retroactive date of June 1, 2005.

Theduration was limited because the parties had been separated for more than three years with little contact between the stepfather and thechild. The Court stated “the tie that connected Mr. Collins to Eric was his relationship to Ms. Collins and that relationship has nowended. It is appropriate that Eric’s financial dependency on Mr. Collins also has an end point.” [119] Had there been legal authority in Alberta, I would have been inclined to time limit s 3 child support to 5 years in the particularcircumstances of this case and would have imposed a termination date of August 30, 2016.

Absent this authority, I conclude theRespondent owes retroactive s 3 child support totalling $17,392.50 for the period September 1, 2011 to and including November 9, 2016.The difference would have only been 3 months of payments in any event. [120] I now turn to a consideration of the Respondent’s child support obligations after each child turned the age of majority. (

f) Does the Respondent owe any child support after DNH and TNH each turned 18years of age? [121] DNH turned 18 on May 25, 2014. He is now 25 years of age and is pursuing his second university degree. TNH turned 18 onNovember 9, 2016 and is still completing her first university degree. They are both over the age of majority as defined in s 2(1) of theDivorce Act. [122] Section 2(1)(

b) defines a “child of the marriage” as meaning a child of two spouses or former spouses who, at the material time, (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from theircharge or to obtain the necessaries of life; [123] “Other cause” is accepted in the jurisprudence to include an adult child pursuing post-secondary education or training.However, the mere attendance of an adult child at a post-secondary institution in and of itself is not sufficient: SLF v JWF, 2016 ABQB635 at para 83 [SLF]. The determination of whether he or she remains a child of the marriage “requires examination of all of thecircumstances”: Farden v Farden (1993), 48 RFL (3d) 60, (BC SC) [Farden] and Taggart v Taggart, 2019 ABCA

78 at para 6 [Taggart]. Farden, and the factors set out in that case, has been repeatedly endorsed and applied by the Alberta Court ofAppeal. See: Taggart at para 6; Graham v Graham, 2018 ABCA 66; Miller v Joynt, 2007 ABCA 214 at paras 11 and 12; PT v RB, 2004ABCA 244 at para 35; and Olson v Olson, 2003 ABCA 56 [Olson]. [124] Once a child attains the age of majority, the child is no longer presumptively entitled to child support: JMB v ACB, 2006ABCA 150 at para 26 [JMB].

The onus of establishing an adult child, who is pursuing a post-secondary education, remains a “child ofthe marriage” is on the party seeking child support: Olson at para 13 and JMB at para 26. The onus is usually not a heavy one where theadult child is pursuing the first level of post-secondary education; however, it becomes more burdensome when the issue concerns post-graduate education: Urquhart v Loane, 2016 PECA 15 at para 23 [Urquhart]. [125] The determination of whether a child remains a “child of the marriage” is a question of fact: De Winter v De Winter, 2013ABCA 311 at para 24.

There is no automatic cut-off of child support based upon the age of the child or level of post-secondaryattainment: Renouf v Bertol-Renouf, 2004 ABQB 885 at paras 33 and 35. [126] Courts have broad discretionary power under the Divorce Act in considering whether to order child support to facilitate post-secondary education: Mraz v Mraz, 2020 ABQB 534 at para 58 [Mraz]. [127] Throughout their post-secondary studies, DNH and TNH have lived sometimes with the Applicant and sometimesindependently, in close proximity to their school.

However, this does not automatically affect the determination of dependency: BDM vMMM, 2019 ABQB 839 at para 48(1); PT v RB, 2004 ABCA 244 at para 39; Wahl v Wahl, 2000 ABQB 10 at para 32 [Wahl]; andHojnik v Hojnik, 2010 ABCA 192 at paras 37-38. [128] According to the Applicant, both children lived with her during their summer holidays from school. They also lived with herwhen their classes went on-line due to the COVID-19 pandemic. The former advice, however, is contradicted by the Applicant’sevidence given at her Questioning that during the summer of 2019 DNH lived and worked in Edmonton.

There may have been anothersummer that he lived in Edmonton as she also mentioned him spending a summer at the Royal Alexandra Hospital. [129] In the Applicant’s Affidavit, she discloses TNH took the 2018 winter semester off from school and returned to live in her care.She did not work and was entirely financially dependent upon the Applicant. She returned to her university studies in the fall of 2018.

Inaddition, DNH took a semester off of medical school; however, he remained living in Barbados during this period of time. [130] In Farden, the circumstances that Master Joyce deemed relevant to the determination of whether an adult child pursuing a post-secondary education remains a “child of the marriage” include: (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; and (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 arelationship from the parent from whom support is sought. [131] Our Court of Appeal explained in Dorey v Dorey, 2011 ABCA 192 (at para 4): While the Farden factors are helpful considerations in determining whether a child remains a child of the marriage, they do not representan exhaustive list and not all must be satisfied before a chambers judge can conclude that the child remains a child for the purposes ofthe Act. [132] I also note the comments of the British Columbia Court of Appeal in Nordeen v Nordeen, 2013 BCCA 178 at para 17[Nordeen]: This Court has found the Farden factors to be useful indicators in deciding whether child support should continue to be paid in respect ofa child over the age of majority who is attending a post-secondary institution (see, for example, Darlington v.

Darlington (1997), (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A.); N. (W.P.) v. N. (B.J.), 2005 BCCA 7 (B.C. C.A.) and De Beck v. De Beck, 2021BCCA 465 (B.C. S.C.)). It must be emphasized, however, that the Farden factors are neither a checklist nor a set of statutorily-mandatedcriteria.

Rather, they are considerations for the court in assessing whether the child’s situation is consistent with the definition of “childof the marriage” in the Divorce Act. [133] In regard to the second and fourth Farden factors, an adult child is expected to contribute towards their education to the fullestextent possible through bursaries, scholarships, student loans, part-time or summer employment: Wahl at para 40 and Mraz at para 58.The Court in Wahl advised “It is very rare when a Court will not require a student to contribute, through his or her own earnings, to thecost of his or her maintenance”: para 43.

At a minimum, adult children should seek out summer employment to help contribute to thecost of their post-secondary education.

[134] In regard to the eighth Farden factor, it contemplates a unilateral termination of the relationship by the child from the payorparent. A person found to be in loco parentis to a child cannot unilaterally withdraw from that relationship: Green at para 39. In Chartierv Chartier, (SCC), [1999] 1 SCR 242 [Chartier], Bastarache J stated at para 32: I do not agree with the reasoning in Carignan. As noted above, the words “in the place of a parent” must be given a meaning that isindependent of the common law concept and reflective of the purposive and contextual approach to statutory

interpretation advocated bythis Court. Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult. Theinterpretation of the provisions of the Divorce Act relating to “child[ren] of the marriage” should be “given such fair, large and liberalconstruction and

interpretation as best ensures the attainment of its objects”: see

Interpretation Act, R.S.C., 1985, c. I-21, s. 12. Thereasoning in Carignan ignores one of the fundamental objectives of the Divorce Act as it relates to children. The provisions of theDivorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled todivorce each other, but not the children who were part of the marriage. The

interpretation that will best serve children is one thatrecognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons willcontinue to act as parents toward them. [135] Bastarache J further remarked at para 45: Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent tosupport a child remains the same.

Natural parents, even if they lose contact with their children, must continue to pay child support. [136] I note that in both Chartier and Green the child at issue was under the age of 16 and therefore presumptively a “child of themarriage.” Here, DNH was 18 years of age when the Respondent was found to be in loco parentis. As well, in Chartier, the step-fatherhad unilaterally withdrawn from his relationship with the step-child. Here, as will be discussed below, the termination of the step-parent/step-child relationship appears to have been mutual.

Moreover, as did Sandomirsky J in the case Ollinger v Ollinger, 2006 SKQB433 [Ollinger], I question whether the Supreme Court of Canada in Chartier intended that once found in loco parentis, this standingwould be permanent. [137] In regards to a child’s unilateral termination of the parent-child relationship, the Court in Farden quoted from Law v Law(1986), 2 RFL (3d) 458 at 462, (Ont SC): In the case at bar, Kimberley Ruth Law has reached the age of 22.

She has not seen fit to contact her father to keep him appraised of herprogress in university and no evidence was made available to the respondent until he unilaterally ceased making maintenance paymentsfor her benefit when she turned 21 in 1985. ... Kimberley has certainly withdrawn from the applicant’s charge as a result of her failure tomaintain any contact with him.

Although it is sufficient that she be in the custodial parent’s charge, I am of the view that where, as here,a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be consideredby the trial judge in determining whether it would be “fit and just” to provide maintenance for that child. A father-child relationship ismore than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few dutiesin return.

It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or herfather in the absence of any conduct by the father which might justify the child’s neglect of his or her filial duties. [138] The application of the 8th Farden factor in the Canadian jurisprudence has been inconsistent; however, it still has weight.

See:BDM v MMM, 2019 ABQB 839 at para 52 and SLF at paras 88-89. [139] In Urquhart, the PEI Court of Appeal indicated a unilateral withdrawal of a child from the relationship with a parent rarelystands alone as a factor disentitling an adult child to support: para 26. Courts will consider: (

a) was the termination justified orunjustified; (

b) the length of time the parties have been estranged; and (

c) the efforts made by the parent to keep the relationship alive:Urquhart at para 27. See also: Wahl at para 67. [140] On the other hand, the Saskatchewan Court of Appeal made the following comments in regard to the 8th Farden factor inGeran v Geran, 2011 SKCA 55 at para 21: The willingness of the child to remain reasonably accountable to the parents in relation to his or her plans.

A child who isunwilling to do so, or who unilaterally and without justification terminates the parental relationship, may be expected toencounter difficulty in nevertheless suggesting that he or she is unable to withdraw from the charge of the parents by reason ofpursuing a reasonable course of post-secondary education. [141] As previously indicated, th

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