Werenka v Werenka, 2021 ABQB 789

Court of Queen’s Bench of Alberta Citation: Werenka v Werenka, 2021 ABQB 789 Date: 20211001 Docket: 4803 151704 Registry: Edmonton Between: Cheryl Shelley Werenka Plaintiff/Respondent (Cross-Applicant) - and - Billy Steven Werenka Defendant/Applicant (Cross-Respondent) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A father applies for parenting time squaring with his current work

schedule and to adjust child support for both of the former

couple’s children. [ 2 ] One adjustment is to factor in AISH payments being received by one son. The other is to recognize a per-separation- agreement termination of s. 3 support for the other son, in light of his moving out of the mother’s home before turning 18. [ 3 ] The mother opposes all of the proposed changes and also seeks (among other relief) to exclude her spousal-support income from the section-7-expense burden-sharing calculation. [ 4 ] I accept the father’s position on all of these issues. B.

Parenting [ 5 ] The backdrop here is a separation agreement made in June 2011, which provided for every- second -weekend access for the father, plus summer-vacation, Christmas, and other access. [ 6 ] The father’s current request (for every- third -weekend access) stems from a change to his in-and-out-of-town work schedule. [ 7 ] The parties’ evidence on this issue – largely their via-affidavit accounts of pre- and post-separation parenting -- differs in many material respects, and I am largely unable (in this special-chambers setting) to resolve the conflicts. [ 8 ] However, I can, and do, find that the best interests of the one son are served by the continuation of the every-third-week access (set on an interim basis by a consent order granted by Kraus J. on February 10, 2021), for these reasons: • the mother’s possibly superior capacity to care for this (severely autistic) son is no reason to deprive the father of material parenting time, particularly where he is seeking (effectively) only two days’ parenting every three weeks (squaring with his in-and-out- of-town work schedule) and where no evidence shows that the father is fundamentally unable or unwilling to offer a reasonable level of care and attention to that son. (On this point, I am not satisfied that, even if the “supervision breakdowns” alleged by the mother are true, that the son’s health and safety has been materially jeopardized in any way); • same for the (possibly) shifting pick-up and return times described by the mother.

Having said that, the parties need a clear schedule, a mutual commitment to honouring it, a measure of flexibility when unexpected circumstances compel an adjustment, and a way to communicate that minimizes opportunities for conflict (discussed further below); • any current communication difficulties between the parents do not appear to have cast any shadow over the father’s relationship with or care for this son; • same for any during-their-relationship difficulties between the parties (now at least twelve years ago, given their December 2009 separation); • whatever public-health-directive-compliance shortfalls (father-wise) may or may not have occurred in the first few months of the pandemic, no evidence reflects any current unwillingness to adhere to all applicable directives or current non-compliance; • any difficulties that may or may not have occurred clothing-on-exchanges-wise are unlikely to occur, or continue occurring, in the future, with any party responsible for the non-return of clothing to be responsible for replacement costs; and • any subpar handling by the father of the son’s skin condition has not caused any material harm and is unlikely to recur, with the mother having explained what care is needed (and assuming she updates the father on any flare-ups). [ 9 ] The father’s new work pattern is clearly a material change of circumstances and one warranting the parenting adjustment he seeks.

C.

Impact of AISH payments [ 10 ] The son discussed above began receiving AISH payments ($1,685 monthly) in October 2019, when he turned 18. [ 11 ] Per the parties’ separation agreement and divorce judgment, the father agreed to pay child support of $2,000 monthly (total for both children): … until the children are no longer considered to be “children of the marriage” within the meaning of the Divorce Act of Canada , until further Order of the Court, the agreement of the parties, or the adjustments set out [elsewhere in the agreement], whichever event shall first occur. … [emphasis added] [ 12 ] It is common ground that this son, now almost 20, is still a “child of the marriage”, and probably will be for life, in light of his severe disability. [ 13 ] The issue here is whether the onset of AISH benefits affects the father’s child-support obligation for him.

Father’s position [ 14 ] Per his brief:

With respect to [this son], he has his own income from AISH of what looks to be $1,685 per month. Justice Veit, in the 1999 case of JRB v CRB [1999 ABQB 254] considered a situation that is exactly the same as the case at bar. Her Ladyship found, among other things, that the court is entitled to consider the means of a child pursuant to section 3(2)(

b) of the Federal Child Support Guidelines and that if the evidence shows that the child’s needs are being met by the child’s means, there is no obligation to pay child support . … It is submitted that from the moment [this son] started receiving his own income, child support no longer was payable by the Father. Because [this son] is over the age of majority, section 3(2) of the … Guidelines is triggered.

It requires the Court to consider the condition, means, needs, and other circumstances of [this son] and the financial ability of each party to contribute to [his] support if the Court determines the table amount [to be] inappropriate under the circumstances. [His] AISH payments represent his means and expenses but for $100 (most of which [is] being arbitrarily applied by the Mother and paid to her with little explanation and no detail) ….

The documented evidence suggests there is no shortfall as the Mother confirms that [the son’s] bank balance remains at the [dollar figure] he had from gift money prior to receiving AISH. As a result, it is clear that the AISH funds are covering all of [his] expenses .

There is no evidence he requires anything further. [emphasis added] Mother’s position [ 15 ] The mother responded (in her brief): The Separation Agreement is a final agreement with respect to the amount of both child and spousal support payable by the Father to the Mother, as the parties agreed to deviate from the … Guidelines. … [the son in question] will always be a dependent as he has non-verbal Autistic Spectrum Syndrome. He is now receiving AISH, but the amount does not fully cover all of [his] expenses and the Mother uses child support from the Father to cover [his] necessities.

Guideline provisions [ 16 ] Here are ss 3(1) (“Presumptive rule [re child support]”) and (2) (“Child of the age of majority or over”) of the Guidelines :

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table , according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7.

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over , the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority ; or (

b) if the court considers that approach to be inappropriate , the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child . [emphasis added] [ 17 ] And here is the Divorce Act definition of “child of the marriage”: ... 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[.] [emphasis added] Case law [ 18 ] A number of Alberta cases have examined the impact of AISH and similar benefits on child support. [ 19 ] In JRB v CFB , Veit J. found that AISH benefits for an age-of-majority (i.e. adult) child moved the support analysis from ss 3(1) to 3(2) of the Guidelines : ... the Federal Child Support Guidelines do not make any provision for considering the resources of the minor child. ... [However, in] this case, the child in question is an adult child.

The Guidelines specifically indicate that, in the case of an adult child, the resources of the child may be taken into account: s. 3(2)(

b) of the Guidelines . [para 15] [emphasis added] [ 20 ] She then explained the rationale for factoring in AISH benefits: ... this case deals with the responsibility of parents for adult children , as opposed to their responsibility for minor children. Our society expects parents to fully support their minor children. We acknowledge, however, that when those children become adults, there comes a point when parents no longer have an obligation to support their children.

When children become adults, and are permanently severely handicapped, surely our society says that this happens so relatively rarely, and that the parents of these adults have already done so much, that we accept that it is our obligation to take over the main financial support of these handicapped adults in much the same way that we accept the responsibility of providing social services for adults who are unemployed. [para 16] [emphasis added]

[ 21 ] She found that such benefits were sufficient to cover the adult child’s needs: The second oldest of the B. children is severely mentally handicapped and receives the maximum amount of monthly AISH payments, $823. No evidence was led on this application as to the basis on which the maximum payments are calculated. Importantly, there is no evidence from Ms. J.R.B., or from any other source, indicating that the AISH payments are inadequate to completely support this adult child . Interestingly, this amount is roughly equivalent to full time employment in a minimum wage job.

In the ordinary way, when an adult child is employed full-time in a minimum-wage position then, without more evidence about the child’s needs, a father would not have to contribute to the child’s support. Does the situation change when the government is providing what amounts to the replacement of income for a mentally handicapped child? A severely handicapped adult may require more than $823 per month to live.

A government program of assistance to severely handicapped adults although presumably providing for all basic needs - since some severely handicapped adults do not have independent means and some do not have extensive family support - cannot be sensitive enough to provide for legitimate extensions of basic needs. However, in this case there is no evidence to support any financial need beyond the amount paid by AISH. Therefore, one can only conclude that the AISH payment received by Mr. C.F.B.’s adult child is adequate to provide full financial support in his mother's home.

In these circumstances, I have concluded that it is inappropriate to apply the Guidelines. Considering the means of the adult child I determine that no support for him is required from the father. Mr. C.F.B. has, at least until the situation changes, no ongoing obligation to support this child. Mr. C.F.B.’s obligations to this child ceased when the child reached 18 and he began to receive AISH .

Therefore, that portion of the arrears which represents payments due in relation to this child after the child’s 18 th birthday [is] cancelled. [paras 19-22] [ 22 ] Acton J. treated AISH benefits the same way in BGM v PGM , 2013 ABQB 67 , however finding a shortfall between the child’s needs and those benefits and thus imposing a proportionate-to-incomes support obligation on the parents to cover it (paras 72-91). [ 23 ] As did Langston J. in KDG v AJG , 2002 ABQB 702 (paras 2-8 ). [ 24 ] Graesser J. treated certain “post-adoption assistance payments” the same way (i.e. as a credit towards the parents’ support obligations) in CSH v EMH , 2013 ABQB 660 (paras 16-49 ). [ 25 ] In RD v LWD , 2019 ABQB 703 , Ho J. (as she then was) confirmed both the “to be factored in” and “not necessarily sufficient” nature of AISH benefits: ...

I will address the father’s argument that because GL receives AISH funding, GL is no longer a child of the marriage because he is able to obtain the necessaries of life. In support of this argument, the father’s counsel referred me to JRB v CFB , 1999 ABQB 254 and LLM v PJM , 2018 ABQB 433 as cases where Alberta courts have held that disabled adult children in receipt of AISH are no longer children of the marriage.

I am further referred to JRB as a decision that purportedly states “upon becoming an adult and receiving support from the Government, the obligation to care for a disabled adult shifts from the parents to society.” [description of JRB , with reproduction of para 16 (reproduced above)] Justice Veit concluded that the father’s child support obligations ended when the adult son reached the age of 18 and received AISH, but she arrived at this determination only after noting that there was no evidence from the mother or any other source indicating that the AISH payments were inadequate to completely support the adult son.

Therefore, I do not read this case as standing for the blanket proposition that once a child of the marriage reaches the age of majority and receives AISH funding, they are no longer a child of the marriage for the purposes of receiving child support . Further, there is an important distinguishing fact between the JRB case and the case before me in which it is uncontroverted that the mother does not have access to, and has never had access to, the AISH funds paid to GL.

Thus, the financial support being provided by society is not actually being provided to the parent who still bears primary care responsibilities . … an adult, disabled child does not cease to be a child of the marriage simply because AISH funding is received. Rather, the provision of AISH funding may be a consideration as to whether the amount of child support payable under the Federal Child Support Guidelines is “inappropriate” having regard to the condition, means, needs and other circumstances of the child under section 3(2)(

b) of the Guidelines . I am satisfied that the mother and the father’s evidence both supports the conclusion that GL remains a child of the marriage for the purposes of the Divorce Act . [paras 122, 124, 127, and 128] [emphasis added] [ 26 ] The Manitoba Court of Appeal illuminated the shared-responsibility (state and family) rationale in Remillard v Remillard , 2014 MBCA 101 : Most of the cases that take into account government assistance relate to adult children who remain “a child of the marriage” by reason of their illness or disability.

In general, “[s]tate-subsidized financial assistance for special needs adult children does not necessarily absolve parents of their child support obligation but disability payments may be taken into account under section 3(2)(

b) of the Federal Child Support Guidelines .” See Julien D. Payne & Marilyn A. Payne, Child Support Guidelines in Canada, 2012 (Toronto: Irwin Law Inc., 2012). ... society shares the responsibility of caring for disabled adults with their parents, which is not the case for disabled children under the age of majority (see Krangle (Guardian ad litem of) v. Brisco , 2002 SCC 9 , [2002] 1 S.C.R. 205). In Senos v.

Karcz , 2014 ONCA 459 , 120 O.R. (3d) 321 , Strathy J.A. (as he then was) held that the receipt of income support by an adult disabled child can make “the presumptive ‘Table’ approach … inappropriate ” (at para. 2). In concluding that it did in that case, he noted that, “ [t]he Table amount is predicated on the parents alone sharing responsibility for the financial support of their child” (at para. 67), which is to be distinguished from the parents’ shared responsibility with society for adult disabled children . See also Ross v.

Ross, 2004 BCCA 131, 195 B.C.A.C. 202; Lougheed v. Lougheed, 2007 BCCA 396, 245 B.C.A.C. 116; and Steidinger v. Morrell, 2013MBQB 143, 292 Man.R. (2d) 278, which comment on this shared responsibility between society and the parents for adult disabledchildren. [paras 65 and 67] [emphasis added] [27] In Senos v Karcz (cited in Remillard), Strathy JA (as he then was) first set the stage: Parents of a disabled adult child face unique financial, emotional and social challenges. When they are divorced or separated, theimmediate burdenusually falls on the parent with whom the child resides.

This appeal concerns the appropriate allocation of financial responsibilityfor the child between divorced parents and between those parents and the state. On a technical level, this appeal raises the issue of whether the receipt of income support under the Ontario Disability Support PlanAct, 1997, S.O. 1997, c. 25, Sched.

B (“ODSPA”) by an adult child makes the presumptive “Table” approach to child support inappropriate, so that support must be determined based on an individualized assessment of the condition, means, needs andother circumstances of the child. ... [paras 1 and 2] [28] He later described the Ontario disability-benefits program: The ODSPA recognizes that government, communities, families and individuals share responsibility for providing support topersons with disabilities: s. 1(b).

The intent of the program, as expressed in its Directives, is to provide supports necessary toenable individuals and families to live as independently as possible in the community and to lead more productive, dignified lives. To these ends, the program provides income support, health benefits and employment supports to people with disabilities in financialneed. The policy of the ODSPA, insofar as it applies to adult children with disabilities, reflects the principle expressed by theSupreme Court of Canada in Krangle (Guardian ad litem of) v.

Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205, at para. 40, that societyshares the responsibility of caring for adults with disabilities: It is the policy of the Province of British Columbia to provide care for disabled adults. This policy is expressly stated in the BC Benefits(Income Assistance) Act, which confirms in the

preamble that "British Columbians are committed to preserving a social safety net that isresponsive to changing social and economic circumstances". When a disabled person becomes an adult, the burden of his or her careshifts from the parents to society as a whole, and it is accepted as fair and just that the continued burden of care of disabledadults should be spread over society generally. At one time, it may well have been the moral responsibility of parents to care for adisabled child for as long as they lived.

But for some decades now, that moral responsibility has shifted to British Columbiasociety as a whole, as expressed by legislation enacted and preserved by successive governments. No evidence was presented forthe proposition that it is shameful or wrong for parents to accept the benefits provided by the government which allow adultdisabled children to be cared for under the social security network of the state. Great as social and medical progress may be,disability will inevitably strike some members of society, randomly and irrationally.

It is not immoral for a society to say thatwhen this happens, the burden will not be confined to the individual and his family, but will be shared by society as a whole. I agree with the observation in Briard v. Briard, 2010 BCCA 431, at para. 18 that this statement does not mean that the entire burdenof caring for disabled adult children has shifted to society.

Chief Justice McLachlin acknowledged at para. 35 that, under the BritishColumbia Family Relations Act, R.S.B.C. 1996, c. 128, both parents must contribute equally when a child cannot leave home andremains a charge or burden on his or her parents. [29] He then explained the interplay between disability benefits and child support: ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. It makes little sense tocalculate child support on the basis that this responsibility falls only on the parents.

In my view, the assumption of someresponsibility by the state and Antoni’s receipt of income support for his board and lodging make the Table approachinappropriate. These circumstances change the equation and call for a bespoke calculation based on Antoni’s unique condition,means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support. It is useful to analogize to the cases involving adult children attending university, living away from home and earning an income, therebycontributing to their own education and support.

There are numerous cases in which courts have concluded that these circumstancesmake the usual Guidelines approach “inappropriate” because the assumptions underlying the approach are not present. TheSaskatchewan Court of Appeal noted in Geran v. Geran, 2011 SKCA 55, 371 Sask. R. 233 that the fact that the child is earning asubstantial income serves to displace one of the basic assumptions on which the Table amounts are based: namely, that childrenunder the age of majority have no incomes of their own.

This operates in turn to throw the appropriateness of the table amountinto doubt, which suggests in general that the amount is more appropriately determined pursuant to subsection 3(2)(b): Geran v.Geran, at para. 65. See also Rebenchuk v. Rebenchuk, 2007 MBCA 22, at paras. 29-32; W.P.N. v. B.J.N., 2005 BCCA 7, at para. 42. There have as well been a number of cases at the trial level in which ODSP and other forms of social assistance received by the childhave been taken into account in determining the appropriate support: Magne v. Magne (1990), (MB QB), 26 R.F.L.(3d) 364 (Man Q.B.); Cossette v.

Cossette, (ON SC), [2003] O.J. No. 4928 (S.C.); Liscio v. Abram, (ON SC), [2009] O.J. No. 3406 (S.C.); Welsh v. Welsh (1998), 79 O.T.C. 81 (Gen. Div.); Blonski v. Blonski, 2010 ONSC 2552.In Henry v. Henry, 2010 ONSC 6990, the court found that the receipt of ODSP income by one of the children madethe Guidelines approach “not appropriate”. See also Vivian v. Courtney, 2012 ONSC 6585. The Table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case ofadult children with disabilities, the ODSPA commits society to sharing some responsibility for support.

In my view, this makesthe s. 3(2)(

a) approach inappropriate, and s. 3(2)(

b) should be applied to achieve an equitable balancing of responsibility betweenAntoni, his parents and society. [paras 64-67] [emphasis added] [30] For a similar approach, see also Wetsch v Wetsch, 2017 SKCA 77 (paras 56-73).

[ 31 ] For a helpful review of many other cases on this subject, see When Does Childhood End? Post-Separation Support for Adult Children in Canada , Professor Nicholas Bala, Queen’s Law – Research Paper Series (November 2018) at pp 16-23.

Application of those principles here [ 32 ] I accept the Veit J.’s approach in JRB and that of the cases echoing it: • the onset of AISH benefits has shifted the focus from ss 3(1) of the Guidelines to ss 3(2); • the AISH benefits here are “means” of the adult child under ss 3(2); and • the question becomes whether those benefits are sufficient to cover the child’s reasonable needs. [ 33 ] The mother’s evidence is that the AISH benefits are sufficient to cover all of the child’s expenses save for “approximately $100 from my spousal support funds to top up the money needed for [his] monthly expenses.” In support, she pointed to various bank statements and use-of-AISH-money statements prepared by her. [ 34 ] The father points to these statements as actually showing a net surplus ($76.21) for 2019 (October to December, inclusive) and only a modest ($53.31) cumulative deficit for all of 2020 i.e. nowhere close to the claimed $100 monthly shortfall. [ 35 ] His view is that, accordingly, no material shortfall exists for him to cover, even proportionate-to-income with the mother. [ 36 ] He also questions the $900 rent charged by the mother, which (per her statements) includes “power and water, internet and TV, banking services, grocery shopping, cooking and housekeeping and laundry services.” He also suggests that some of the monthly food charges (ranging from roughly $360 to $540) are excessive. [ 37 ] Because it appears the AISH benefits are effectively covering the various expenses raised by the mother, which I take as a comprehensive survey, I do not have to explore the reasonableness of a given expense category. [ 38 ] With no material spill-over expenses, at least for 2019 and 2020, the father, and the mother, end up having no child-support responsibilities per para 3(2)(

b) of the Guidelines , with AISH benefits constituting sufficient support on their own. [ 39 ] If the child’s expenses have continued at the same or roughly the same scale for 2021 year-to-date, the same analysis would apply. [ 40 ] The father did not provide evidence of his child-support payments from October 2019 to the present, so I cannot decide if he has any overpayment-of-support credit. (Given his two-child obligation of $2,000 monthly, his child support obligation was reduced, for the AISH reason discussed above, to $1,000 (i.e. for the other child) as of October 1, 2019, subject to the “move out” discussion below, concerning the other son.) [ 41 ] Here I also note para 21 of the parties’ separation agreement, which recognizes that a variation of child support may be required “as a result of a change of circumstances ....” [ 42 ] I regard the onset of AISH benefits as such a change here. [ 43 ] If the parties are unable to agree on the extent of child support paid by the father since the start of October 2019 (if any) or how any overpayment should be recovered, they can apply for directions, via my assistant.

D.

Impact of other son moving out before turning 18 [ 44 ] The next issue is the impact of the other son having moved out of the family home shortly (about two months) before his eighteenth birthday i.e. his move to Edmonton (from Vermilion) to start studies at the University of Alberta. [ 45 ] This is an issue in light of provisions in both the separation agreement and divorce judgment saying that, if a child moves out of the family home before 18, “child support will be reduced by half.” [ 46 ] The mother says (in her brief): ... the Father is required to pay child support until the children are no longer children of the marriage as defined by the Divorce Act .

Although a term in both the Divorce Judgment and [the] Separation Agreement permits child support to be halved if a child moves from home prior to turning 18, the intent was that child support would no longer be payable if the child was no longer dependent .

I was counsel of record when the parties entered into the Agreement, and the term was not intended to result in a loss of support for the dependent child if he moved from home prior to turning 18 so that he could attend university on a full-time basis. [emphasis in original]. [ 47 ] The father responds (per his brief): [This] child support issue is largely a contractual

interpretation matter. Among other things, the Agreement includes the following terms ...: a. The Agreement is intended to be a final settlement of support ...; b. Joint custody ...;

c. Directs payments of child support in the amount of $2,000 per month ...; d. If one child moves out of the home before he turns 18, child support will be reduced by half ...; e. The quantum of child support is based on the Father having an income of $226,349, the Mother having an income of $0, and monthly spousal support of $4,066 being paid ...; f.

The financial consequences of the care of any child of the marriage has been fairly apportioned by the terms of the Agreement, and both parties are economically self-sufficient or have the present ability to be economically self-sufficient within a reasonable period of time ...; g. If either party has not complied with any term of the Agreement [he or she] must pay the other party solicitor-client costs of enforcement ...; and h. Both parties must obey the terms of this Agreement .... The [divorce judgment] includes, among other things, the following terms ...: a.

The mother is not working outside the home but intends to do so in a reasonable amount of time ...; b. The parties are departing from the Guidelines with the Father paying more in spousal support than he would have on top of child support as per the Agreement ...; c. Joint custody ...; d. Child support of $2,000 per month payable ...; e. If one child moves out of the home before he turns 18, the child support will be reduced by half ...; f. Agreement is required before incurring a

section 7 expense ...; and g. The Father is to pay spousal support of $4,066 per month. If child support is adjusted up, spousal support will be adjusted down in an equal amount ....

The spousal support was clearly set higher than it should have been in order to settle matters, and it was done with reliance on all the other terms contained in the Agreement and [divorce judgment], including the reduction in child support by half if one child moves out of the home prior to turning 18. [Mother has acknowledged that the one child did so move.] As a result, when [that child] moved out effective August 1, 2019, the Father’s child support obligations were reduced, moving forward, to $1,000 per month. [ 48 ] The mother countered that, by her calculations, the $2,000 monthly child support was materially lower than the support otherwise payable per the father’s income when the settlement was reached. [ 49 ] I first reject the mother’s “intention” argument.

First, her counsel cannot be both counsel and witness here. I give no weight to her counsel’s “personal submission” about the intention of the agreement. [ 50 ] Second, the “move out” provision was necessarily aimed at a dependent child moving out.

If an independent child moved out before 18, he would no longer have been a “child of the marriage.” [ 51 ] The definition of that term, for a minor child, is one who is “under the age of majority and who has not withdrawn from [the parents’] charge .” [ 52 ] In other words, an independent minor child – somehow fending for him- or herself i.e. no longer a “charge” on the parents – is no longer a “child of the marriage.” [ 53 ] The parties’ divorce judgment and separation agreement addressed that contingency separately, in provisions (ss 7 and 12, respectively) shutting down support for a child if he were no longer a “child of the marriage.” [ 54 ] The “move out” provision accordingly cannot be explained away as covering this otherwise-provided-for contingency (i.e. move by a no-longer-dependent child). [ 55 ] Third, the “move out” provision is clear and unambiguous, making resort to outside indicators of intention unnecessary. [ 56 ] More importantly on this point, both parties paid insufficient attention to the companion provision to the “move out” clause in both instruments (i.e. settlement agreement and divorce judgment), namely, “This [reduced-by-move-out] child support does not include the [father’s] proportionate contribution toward

section 7 expenses as set out in [certain following paragraphs].” [ 57 ] By the latter clause, the parties expressly recognized, and provided, that, while

section 3 child support would no longer payable in respect of a moved-out-minor child, the move-out would not undercut entitlement to section-7 support. [ 58 ] And no “support gap” exists here: the section-3-support-ending move coincided with the moving son’s launch into university, with section-7 post-secondary education support then engaged. [ 59 ] Plus, nothing in either instrument purports to limit the scope of

section 7 expenses for university. Both simply refer to “expenses for post-secondary education” i.e. with no limitation to (for example) tuition and books.

[ 60 ] This issue was explored by Loparco J. in Damphouse v Damphouse , where she found that, even though

section 3 support ended (per an agreement),

section 7 picked up the slack: Child support is the right of the child. Parties cannot contract out of supporting their child in a manner required by law. Consequently, clause 13 could not have intended to detrimentally affect Julia by virtue of a premature ruling that she would no longer be a “child of the marriage” if she moved away for school or university. However, the fact that Julia remained a “child of the marriage” during her time away at school, dependant on her parents’ financial assistance, does not necessarily mean that

section 3 child support was payable by either parent. In this case, when clauses 13, 14 and 17 of the 2011 Order are read together, it appears that if a child were to be over the age of 18, attending school or university and not living at home with either parent, the parties contemplated that

section 3 child support would no longer be payable; rather the parties would support the child by contributing his or her proportionate share toward the child’s s 7 secondary and post- secondary expenses. The case law is clear that secondary and post-secondary expenses can include accommodation and other living expenses. ... I conclude the parties intended that if a child was over the age of 18, and attending school or university away from home,

section 3 child support payments to the other parent would cease. However, both parents might still have a duty to pay their proportionate share of reasonable

section 7 expenses .... In my view, what was contemplated by the provisions of the 2011 Order appears to merely be shifting the modality of support for a child over the age of 18, in the event that the child moved away for school or university, from

section 3 child support to treating the child’s secondary or post-secondary expenses as

section 7 expenses. The case law is clear that these expenses can include accommodation and other living expense. Indeed, what both parties depose to paying for are usual

section 7 expenses for adult children attending school away from home: such as dental, counselling, tuition, laptop, books, transportation, and living expenses. Generally speaking,

section 3 child support compensates the payee parent for the cost of the basic necessities of life for a child in their care including food, clothing, and shelter. This was no longer expressly needed by Ms. Swystun or Mr. Damphouse after Julia moved to Norway to attend high school in August 2013. I find, after the age of 18, the combined effect of clauses 13, 14 and 17 of the 2011 Order is that the parties were to share Julia’s living and educational expenses while she was away from home attending school or university in proportion to their respective incomes.

Determining the quantum to be paid by each party would depend on a number of factors including the parties’ means, Julia’s ability to contribute, along with the availability of any scholarships, bursaries, grants and other sources of funding. It is clear from the affidavits that both parents continued to financially support Julia while she studied abroad, which demonstrates their acceptance of her dependency and their ongoing duty to support her . [paras 40, 41, 45, and 48-51] [emphasis added] [ 61 ] That is precisely what the parties agreed to here, in the post-move circumstances i.e. a shift to broadband

section 7 support, congruent with this child having moving away from home to start university i.e. support for accommodation, food, and other living expenses, on top of direct post-secondary costs like tuition and books. [ 62 ] Accordingly, in the circumstances as they have played out, there is no material departure from Guideline -level support, or any departure at all.

We are accordingly not dealing with a “per contract” departure from Guideline support and the necessary inquiry (per para 15.1(5) of the Divorce Act ) i.e. gauging whether “special provisions” in a separation agreement or divorce judgment compensate for below- Guideline support. [ 63 ] All to say: in line with the express and unambiguous wording of the instruments, the one son’s move out before 18 indeed eclipsed his

section 3 support; however, his entitlement to broadband

section 7 support picks up the full slack, with his parents being obliged, per these same instruments, to cover all reasonable expenses associated with living-away-from-home university life. E. Sharing percentages for

section 7 support [ 64 ] The mother argued that, with her income set at zero per the separation agreement, the father bore at that time, and would continue to bear, the full burden of

section 7 expenses. [ 65 ] I disagree. [ 66 ] The mother’s income at the date of the separation agreement (June 10, 2011) was indeed zero i.e. before any spousal support (per that agreement) had been paid to her. [ 67 ] By the date of the divorce judgment (filed December 12, 2012), her income was reported at $48,792 i.e. the annualized amount of the monthly spousal support ($4,066). [ 68 ] Per both instruments, neither party’s income was contemplated to be fixed or static: instead, each had a continuing duty to report annual income to the other, which points to ongoing adjustments (as necessary) to section-7-burden sharing. [ 69 ] This dynamic approach is reflected in the separation agreement (s. 17): As of the date of this Agreement [June 10,2011], given the parties’ respective guideline incomes, the Husband’s proportionate share of Section-7 expenses is 100 per cent, and the Wife’s proportionate share ... is 0%.

[ 70 ] I accept the father’s position that, per the Guidelines , a spousal-support-recipient’s income, for section-7-burden-sharing purposes, includes that support, with the payor’s income adjusted to factor it out: • section 7(2) of the Guidelines gauges relative support “ in proportion to [the parents’] respective incomes after deducting from the expense, the contribution, if any, from the child”; •

section 16 says that “a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III [of the Guidelines ]”; • the T1 General form includes spousal support received as an element of “total income”; and • the only spousal-support adjustment contemplated under

Schedule III, relating to section-7-related income calculations, is (in s. 3.1) the factoring out of spousal support paid by the payor i.e. with no factoring out or other adjustment to spousal support received by the recipient. [ 71 ] Accordingly, the parties will bear the section-7-expense load proportionately, with the mother’s income being her spousal- support payments and any other income reflected on her tax returns and assessments. F.

Conclusion [ 72 ] To recap: 1. the father’s periodic parenting will shift (from the original instruments, and in line with the Kraus J. consent order) to every third week (same pattern including pick-up and drop-off times as in that order), starting October 8, 2021 or such other date as the parties may agree; 2. his other parenting (e.g. summer-time, Christmas) will be per the original instruments; 3. the parties shall switch their non-emergency communications to coParenter, Our Family Wizard or a similar communication program; 4. in case of emergency (e.g. car troubles preventing an on-time pick-up or drop-off), they may communicate by text message; 5. no support was payable by the father for the son receiving AISH benefits as of October 1, 2019 or thereafter; 6. the mother can apply for contribution by the father to any future reasonable expenses of the one son i.e. to the extent his AISH benefits are insufficient to cover all of his reasonable expenses; 7. section-3 support for the other son was no longer payable after September 1, 2019; 8. as directed above, directions on the extent of payments made or the recovery of any overpayment (on either front i.e. concerning either son) can be requested via my assistant; 9. all expenses reasonably associated with the moved-out son’s university attendance shall be borne by the parties proportionately, starting in late summer 2019 or whenever he first began incurring university-related expenses; 10. if the parties require further directions on any section-7-related issue (including any possible front-end adjustments such as scholarships, bursaries, student loans, or salaries or wages earned by the one son during the university year or during summer holidays), they can contact my assistant to discuss the terms for obtaining them; and 11. if either party believes that any other issues (going beyond the parenting and child-support issues green-lighted by the Family Docket endorsement here) can and should be decided on the basis of the existing materials and submissions at the special chambers application, he or she can so advise via letter to my assistant.

I will then decide whether any such issues can and should be addressed and, if so, whether either party should have the opportunity to make any further submissions. [ 73 ] As for costs, if the parties are not able to agree by October 8 th , their costs submissions, via letter (two-page maximum), are due by October 22 nd . Heard on the 21 st day of September, 2021. Dated at the City of Edmonton, Alberta this 1 st day of October, 2021 .

M. J. Lema J.C.Q.B.A. Appearances: Mark H. Demas Demas Schaefer LLP for the Defendant/Applicant (Cross-Respondent) Joanne Tymafichuk Nelson Tymafichuk Law Office for the Plaintiff/Respondent (Cross-Applicant) I