Perreault v Kendall, 2021 ABQB 900

Court of Queen’s Bench of Alberta Citation: Perreault v Kendall, 2021 ABQB 900 Date: 20211112 Docket: 4803 182636 Registry: Edmonton Between: France Perreault Applicant - and - Warren Roy Kendall Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction and Overview [ 1 ] France Perreault, “the Applicant”, seeks a determination as to whether or not the parties son, E.K., born March, 2002, remains a child of the marriage and, if so, what amount of on-going child support continues to be payable. She also seeks a determination as to whether or not she is entitled to retro-active child support. [ 2 ] This application was heard by me on September 2, 2021. At the conclusion of the oral hearing, I asked both parties to

provide me with either a copy of their 2019 income tax return, or Notice of Assessment. I also asked to be provided with a report from E.K.’s physician outlining the status of his health issues, together with documentary evidence confirming E.K.’s school attendance during the 2019-2020, 2020-2021 and 2021-2022 academic years. This information has now been provided to me. These are my reasons for decision. Facts [ 3 ] The parties were married on April 21, 2001, separated on September 1, 2009, and were divorced on May 23, 2018.

They executed a Separation Agreement on August 1, 2013. [ 4 ] There are two children of the marriage: E.K. (DOB: March, 2002); J. K. (DOB: January, 2004). [ 5 ] The terms of the Divorce Judgment provide for a shared parenting regime with the children spending 50% of the time with each parent on a week on/week off basis. The Divorce Judgment provided that the Applicant was to pay child support to the Respondent in the amount of $914 per month effective July 1, 2018, while the Respondent was to pay child support to the Applicant in the amount of $1674 per month, also effective July 1, 2018.

This resulted in a set-off amount of $760 per month payable to the Applicant. [ 6 ] The Divorce Judgment set the Applicant’s Guideline Income at $63,000 and the Respondent’s Guideline Income at $115,577.

Section 7 expenses were to be divided on a proportional basis according to the respective incomes of the parties. One of the terms of the Divorce Judgment required the parties to exchange income information on an annual basis by June 30 th of each year. [ 7 ] According to the terms of the order of Yungwirth J dated February 26, 2021, the Applicant’s Guideline Income for 2020 was set at $65,700 and the Respondent’s Guideline Income was set at $117,802.

Based on the tax information provided, I would set he Applicant’s Guideline Income for 2019 at $81,946, and the Respondent’s Guideline Income at $108,020. [ 8 ] Since December 1, 2018, E.K. has been living with the Applicant on a full-time basis. In December 2020, J.K. also made the decision to live with the Applicant on a full-time basis. The Respondent has had periodic access to both children since they went to live with the Applicant.

While the Respondent would not agree to increasing his s 3 child support in accordance with the Federal Child Support Guidelines, he increased his child support by $190 per month commencing in February 2019. [ 9 ] E.K. reached the age of 18 years on March 31, 2020. As of May 1, 2020, the Respondent terminated s 3 child support for E.K., notwithstanding the fact that E.K. was attending high school at the time. [ 10 ] E.K. did not graduate from high school in June 2020. He repeated portions of Grade 12, but did not graduate in June 2021, as had been anticipated.

He attended further classes during the 2021-2022 academic year. As more fully set out below, he has attained approximately half of the credits required to obtain a high school diploma. The Law [ 11 ] The Divorce Act , RSC 1985, c 3 (2 nd Supp ) defines “age of majority” and “child of the marriage” in

section 2 in the following terms: “age of majority”, in respect of a child means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age; “child of the marriage” means a child of two spouses or former spouses who, at the material times

a) 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. [ 12 ] Whereas the amount of child support payable in respect of a child under the age of majority is presumptively the amount set out in the Child Support Guidelines (“the Guidelines ”), section 3(2) of the Divorce Act provides that the amount of child support to be paid in respect of a child over the age of the majority is determined on the following basis:

(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. [ 13 ] The onus of proving that a child remains a child of the marriage after reaching the age of majority is on the parent making the claim, in this instance the Applicant.

Position of the Parties [ 14 ] The Applicant seeks retroactive child support back to December 1, 2018, until April 30, 2021. She also seeks an order confirming the amount of on-going s 3 child support from May 1, 2021. [ 15 ] In addition, the Applicant requests that the Respondent contribute to s 7 extraordinary expenses for E.K., specifically for dental work totalling $4,400. She seeks a monthly contribution of $117 from the Respondent back to February 1, 2021. According to the Applicant, their son’s dentist recommended that E.K. obtain Invisalign braces to correct an overbite that was causing him headaches.

When the Respondent refused to contribute to the cost of this dental treatment, the Applicant made the decision to go ahead with the expenditure so as to take advantage of E.K.’s eligibility for partial coverage under the Applicant’s medical plan prior to him reaching the age of 18 years. The total cost of this dental work was $4,400. The Applicant has set up a monthly payment plan in relation to which she pays $170 per month. [ 16 ] The Respondent maintains that, absent a court order, he is not responsible for paying child support to the Applicant relative to E.K. as of December 1, 2018.

The Respondent relies on the terms of the Divorce Judgment which specify that the children are to live with their parents on a 50/50 basis. He maintains that he is not obliged to pay the full Federal Child Support Guidelines table amount for the children in the absence of a variation of the Divorce Judgment. [ 17 ] Further, the Respondent disputes that E.K. continues to be a child of the marriage, having attained the age of 18 years as of March 31, 2020. According to the Respondent, their son is not attending school on a full-time basis.

Rather, he says that E.K. is currently taking two online classes only, and that he dropped out of his former high school. The Respondent maintains that E.K. is currently unemployed, having been dismissed from his former job.

Further, the Respondent asserts that E.K. has elected to remain at home, play video games and smoke marihuana, rather than attend school or seek and maintain employment. [ 18 ] While the Respondent expresses concern for his son’s ADHD and depression, he believes that at least part of his son’s difficulties flow from the Applicant’s refusal to set reasonable expectations and boundaries for the children.

Analysis [ 19 ] This following issues arise for determination in this matter: The Childrens’ Decision to Change Their Living Arrangements [ 20 ] In his affidavit affirmed on April 6, 2021, the Respondent confirms that E.K. moved to his mother’s home on a full-time basis as of December 1, 2018. The Respondent takes the position that it was thereafter incumbent on the Applicant to seek a court order confirming this change in parenting arrangements.

He also says that the Respondent was obliged to demonstrate that this change in the parenting arrangement was in the best interests of E.K., and presumably J.K. as well. [ 21 ] Based on my review of the evidence, it does not appear that there was any adjustment to child support as a result of J.K.’s decision to live with the Respondent on a full-time basis as of December 2020. [ 22 ] In my view, there is no merit to the Respondent’s argument on this issue.

Given the age of the children, it is hardly surprising that they each determined that they wanted to make their own decision regarding their living arrangements. Given the age of the children at the time they made these decisions, I am of the view that they are entitled to “vote with their feet”, so to speak, and to make the decision where they wish to reside. They were both 16 years of age at the time they made their respective decisions; an age at which the views of children are, generally speaking, entitled to serious consideration, even deference.

Under the circumstances, I attach little, if any, significance to the fact that the children’s decisions were at variance with the terms of the Divorce Judgment. [ 23 ] I do not accept the Respondent’s contention that changes in parenting occasioned by the children’s decision to live with one of their parents on a full-time basis did not require a recalculation of child support.

These significant changes in the parenting arrangement called for the parents to adjust the financial support arrangements then in place. [ 24 ] In my view, a court application to give effect to this new family reality was not required under the circumstances. The outcome of such an application would have been a foregone conclusion given that the changes were brought about by the seemingly considered choices of these teenaged children. Absent some compelling reason, it is difficult for me to envision a court declining to give effect to such a change in the children’s living arrangements.

I would simply add that these are the sort of decisions that parents should be able to successfully navigate without the requirement of court intervention. [ 25 ] Effective January 1, 2019, I would vary the Respondent’s child support to $1569.28 per month. I would also reduce the Applicant’s child support to $717.27 effective that same date, leaving a set-off amount of $852.01 payable by the Respondent. This recalculation takes into account the Respondent’s slightly higher Guideline Income in 2019, as well as E.K.’s change in living arrangements.

For the calendar year 2019, the Respondent should have paid set-off child support in the total amount of $10,224.12. Does E.K. Continue to be a “Child of the Marriage” Notwithstanding That he Attained the age of 18 Years in March, 2020? [ 26 ] The relevant provision of the Divorce Act provides that a child continues to be a “child of the marriage” after reaching the age of 18 years if that child is ”unable by reason of illness, disability or other cause, to withdraw from their [parent’s] charge or to obtain the necessaries of life.”

[ 27 ] The Respondent acknowledges that he discontinued child support for E.K. once he attained 18 years of age. However, he deposes that he continues to provide financial assistance directly to E.K. through the purchase of clothing, payment of his cell phone bill on at least one occasion, covering E.K. bank overdrafts, and providing him with money for food and haircuts.

The Respondent also maintains that he has provided E.K. with multiple dinners in restaurants. [ 28 ] It is generally accepted that secondary and post-secondary education or training amounts to “other cause” within the meaning of the definition of “child of the marriage”. Post-secondary education or training is not restricted to pursuing a university degree, but would include vocational training. A child who ceases to be a child of the marriage may regain that status through the pursuit of further education.

The calculation of child support payable in such circumstances may be based on the applicable Table Amount specified under the Guidelines , or calculated in accordance with the formula set out in s 3(2)(

b) of the Divorce Act . [ 29 ] In approaching this issue, I agree with the decision of Hoegg JA in Winsor v Winsor , 2017 NLCA 54 , at para 23 , that the governing principle is “reasonableness” – what is reasonable in these particular circumstances.

In fixing child support for children over the age of majority, courts must be prepared to take into consideration the actual circumstances of the child in question, including health status, personal characteristics, abilities and living circumstances. [ 30 ] The parties do not appear to have a shared or common understanding of E.K,’s academic or employment circumstances following the completion of the 2017-2108 academic year.

Of greater concern, they do not have a shared or common understanding regarding E.K.’s current health situation or what steps should be taken to address their son’s overall troubling circumstances. [ 31 ] According to the Applicant, their son suffers from ADHD and depression and is on medication for both conditions. Evidence provided by the Applicant tends to confirm this assertion on her part. The Applicant maintains that the Respondent refuses to acknowledge their son’s medical struggles and refused to support him after he reached the age of 18 years notwithstanding his awareness of the underlying issues.

The Applicant says that their son has made serious efforts to find employment, but has been unsuccessful. [ 32 ] An Alberta Transcript of High School Achievement was provided for E.K. To date, he has obtained a total of 55 credits, 100 credits being required to obtain a high school diploma. The transcript also reveals that he has only completed one 30 level course. According to the Alberta Education website, he must complete Social Studies 30, and obtain 10 additional 30 level credits in order to graduate from high school.

It seems clear to me that E.K. has some way to go to complete his secondary education. [ 33 ] A review of this document suggests that E.K. last attended high school on a full-time basis in 2017-2018. He took 7 courses in the first semester of that academic year and a further 8 courses in the second semester. In 2018-2019, it would appear that E.K. attended Health Services Foundations in the first semester at Bellerose Composite High School and obtained a mark of 50. He enrolled in Career & Life Management in the second semester of that year, also at Bellerose, but failed the course.

He also took English Language Arts 20-2, a grade 11 level course, in the summer of 2018-2019, and obtained a mark of 50. He also successfully completed a Grade 10 level mathematics course. Both of these summer courses were taken through Bellerose Continuing Education. [ 34 ] The following year, 2019-2020, he completed Social Studies 20-2 and English Language Arts 20-2 in the second semester and obtained a mark of 50 in each course. Both of these courses were offered by St. Albert Public Outreach. [ 35 ] In 2020-21, he registered for Mathematics 20-2, in the fourth quarter at St.

Albert Public Outreach, but failed the course. [ 36 ] E.K. confirms that he was then taking two courses during this school year in an email dated March 11, 2021, appended to the Respondent’s affidavit of April 6, 2021. [ 37 ] On the evidence before me, it is clear that E.K. suffers from apparently serious mental health issues. [ 38 ] The Applicant filed a letter from E.K.’s physician, Dr. K. Ching, dated September 24, 2021. Dr. Ching reports that she has been E.K.’s doctor since 2013, though only saw him once between 2013 and 2018. She has, however, seen him twelve times since 2018. [ 39 ] In her letter, Dr.

Ching indicates that E.K. has been diagnosed with Major Depressive Disorder, Generalized Anxiety Disorder and Attention Deficit Hyperactivity Disorder (ADHD). She reports that “he has struggled with low mood and lack of motivation and lack of focus for many years.” He is also reported to have tried to hurt himself in 2020. Dr. Ching reports that a number of different medications have been prescribed with limited success. With respect to his school attendance, Dr. Ching states that “E also had a tutor in the past but still struggled with concentration. E was absent from school 20% of the time.

E attempted Outreach High School in 2020 but struggled with organization and attention.” She also reported that his extreme anxiety has had an adverse impact on his ability to navigate job interviews. [ 40 ] In terms of prognosis, Dr. Ching’s report concludes: E’s prognosis is very guarded. He requires medication for his ADHD and depression. He also requires psychological counselling. With the right supports, E may be able to overcome the barriers to completing some education and finding employment.

He is booked to see a psychiatrist on October 12, 2021. [ 41 ] In his affidavit, the Respondent confirms that E.K. has been diagnosed with ADHD and depression. The Respondent deposes in his April 6, 2021 affidavit that E.K. has been fired from his job, dropped out of school, and that he is using marihuana on a regular basis. Further, the Respondent deposes that E.K. is still welcome to move back to his father’s residence and that he was never kicked out of the house. [ 42 ] The Respondent maintains that he has never been provided with reliable information that E.K. has been attending school.

He points to Exhibit “C” to the affidavit of the Applicant dated March 23, 2021, in which the Applicant appends a weekly

schedule for the week of March 22, 2021, but which fails to identity any academic institution or anything that ties the

schedule to E.K. The Respondent maintains that he has no information regarding his son’s current academic program and has not been provided with any information regarding E.K.’s academic performance. Indeed, the Respondent deposes that E.K. has refused to consent to providing this information

to the Respondent. [ 43 ] In her affidavit sworn on April 13, 2021, the Applicant maintains that E.K. never dropped out of school. Rather, the Applicant claims that E.K. struggles with depression and ADHD and that this led to a drop in his course load. She maintains that the parties have always known that E.K. struggled in school and that it would take him longer to graduate than might otherwise be the case.

The Applicant goes on to state that E.K. continues to take courses so that he can graduate from high school. [ 44 ] The Applicant does not dispute E.K.’s marihuana use, but states that it began while he was living with the Respondent. She also maintains that he lost his job a year after he commenced living with her.

Further, the Applicant maintains that E.K. is not able to support himself due to ongoing struggles with mental health. [ 45 ] The evidence before me leaves many unanswered questions regarding E.K.’s current mental health condition and its possible impact on his ability to complete his education or secure and maintain employment. I am concerned that there does not appear to be any real plan in place to address E.K.’s seemingly serious mental health issues.

I am left wondering why it has taken upwards of 3 years to refer E.K. to a psychiatrist or other specialist to try and identify the source of these health and other difficulties and to come up with a comprehensive plan. His current physician reports that he requires counselling, but it is not clear to me that he has ever received any psychological counselling throughout an adolescence that seems to have been marked with significant warning signs that he was not coping at school or in life, generally.

Once E.K’s health issues have been addressed, what is the plan for him to complete his education, or seek out meaningful employment? [ 46 ] I am also very concerned that the parents have struggled in the past to work together to try and address their son’s various challenges. Having reviewed the various affidavits relating to this matter, and after listening to the parties during the court appearance on September 2, 2021, I am satisfied that the parties place a great deal of “blame” on the other parent for the significant problems confronting E.K. at the present time.

In my view, this “blame game” is unhelpful and tends to divert attention away from the real issues that need to be addressed. I would urge both parties to consider joint counselling as a possible avenue to help them develop the appropriate skills and attitudes to enable them to work together on these very difficult issues. [ 47 ] The possibility of joint counselling to improve communications and enhance parenting skills was explored at some length during the court appearance on September 2, 2021.

I am very optimistic that both parents now see the need to adopt different strategies in their joint efforts to parent their two children. I commend them both for their openness to this important conversation. I urge them to continue to try and work together. [ 48 ] Taking all of this into consideration, I am satisfied that the Applicant has demonstrated that E.K. is currently unable to withdraw from the care of his parents on account of illness. However, given the uncertainties regarding E.K.’s diagnosis and prognosis, I make this determination on an interim without prejudice basis only.

As such, I direct that this matter be brought back before the Court by the end of March 2022, for a review. Based on the outcome of that review, this matter may well require a further hearing, without or without vive voce evidence, to determine this issue on a more permanent basis. [ 49 ] Between now and the end of March 2022, I would direct the parties to work with E.K’s physician, as well as his psychiatrist and any other health care providers who may become involved in this matter, to come up with a plan to try and position E.K. for future academic or employment success.

The Court hearing this matter in March 2022, will obviously need additional information relating to the nature and extent of E.K.’s mental health issues and on his ability to complete his education and achieve economic independence. [ 50 ] A copy of these Reasons will be provided to the Edmonton Trial Coordinator with the request that this matter be set down for a 1 hours review by way of Rule 4.10 Case Conference at a date and time to be arranged prior to the end of March 2022.

The parties are directed to each file one (1) affidavit prior to March 15, 2022, setting out the progress that has been made in moving this matter forward. Copies of any relevant medical, counselling or educational reports should be included as attachments to these affidavits. [ 51 ] While I am not prepared to make anything other than an interim without prejudice order, I am satisfied for the reasons set out above that E.K. continues to be a child of the marriage.

As such, I direct that the Respondent will continue to pay s 3 child support from April 1, 2020, notwithstanding that E.K. attained the age of 18 years on March 31, 2020. [ 52 ] Given the Respondent’s 2020 Guideline Income as determined by Yungwirth J, I would set the Respondent’s s 3 child support at $1,704.07 for the period of January 1, 2020 to March 31, 2020.

I would set the Applicant’s s 3 child support at $560.58, resulting in a set-off amount of $1143.49 payable by the Respondent on a monthly basis. [ 53 ] For the period April 1, 2020 to December 31, 2020, I would direct that the Respondent should pay monthly child support for one child, J.K. at the table amount, namely $1041.90 plus an additional $250 per month as on-going support for E.K.

I would set the Applicant’s s 3 child support for this same 9-month period at $560.58, resulting in a set-off amount of $731.32 payable by the Respondent. [ 54 ] In view of my earlier decision regarding the need to recalculate child support as a result of the new parenting arrangements relative to both E.K. and J.K. I would further direct that the Respondent is to pay s 3 child support in the amount of $1291.90 for 2021 and for the months of January to March 2022. The Respondent’s Obligations to Contribute to

Section 7 Expenses [ 55 ] The parties’ dispute regarding s 7 expenses appears to be focused on the cost of E.K.’s Invisalign braces, reported by the Applicant to have been recommended by E.K.’s dentist to address headaches. There also appears to be some issue relating to the costs associated with E.K.’s medication. According to the Respondent, he has a drug plan at his place of employment that would cover E.K. up until the time that he reached the age of 19 years. The Respondent states that he has made arrangements with the work place insurer to cover “most” of the claims submitted by the Applicant as

section 7 extraordinary expenses.

[ 56 ] Generally speaking, courts are reluctant to impose s 7 expenses on parents if they have either had no input into the decision to incur the expense, or if they have withheld their consent to the expenditure. While consent to legitimate s 7 expenses should not be unreasonably withheld, courts are mindful that unforeseen or unexpected responsibility for financial expenditures can have significant adverse consequences for a parent suddenly being asked to contribute to an unplanned expenditure. [ 57 ] In this instance, the Respondent does not appear to question the need for the expenditure.

Rather, he questions the Applicant’s decision to commit to a particular program when a less costly course of treatment was available. I am satisfied that the Respondent is prepared to at least reconsider his earlier decision not to contribute to E.K.’s Invisalign braces. I decline to make any order regarding

section 7 expenses and rely on the parents to continue to work together to manage this on-going issue. Conclusion [ 58 ] For the reasons set out above, I make the following findings relative to this application:

a) Pending review of this Court by the end of March 2022, on an interim and without prejudice basis, I find that E.K. remains a child of the marriage notwithstanding that he has attained the age of 18 years. As such, I direct that the Respondent will continue to pay s 3 child support from April 1, 2020, notwithstanding that E.K. attained the age of 18 years on March 31, 2020;

b) Effective January 1, 2019, I would vary the Respondent’s child support to $1569.28 per month. I would also reduce the Applicant’s child support to $717.27 effective that same date, leaving a set-off amount of $852.01 payable by the Respondent. This recalculation takes into account the Respondent’s slightly higher Guideline Income in 2019, as well as E.K.’s change in living arrangements. For the calendar year 2019, the Respondent should have paid set-off child support in the total amount of $10,224.12;

c) Given the Respondent’s 2020 Guideline Income as determined by Yungwirth J, I would set the Respondent’s s 3 child support at $1,704.07 for the period of January 1, 2020 to March 31, 2020. I would set the Applicant’s s 3 child support at $560.58, resulting in a set-off amount of $1143.49 payable by the Respondent on a monthly basis for these three months;

d) For the period April 1, 2020 to December 31, 2020, I would direct that the Respondent should pay monthly child support for one child, J.K., at the table amount, namely $1041.90. The Respondent shall also pay an additional $250 per month as on-going support for E.K. I would set the Applicant’s s 3 child support for this same 9-month period at $560.58, resulting in a set-off amount of $731.32 payable by the Respondent.

e) In view of my earlier decision regarding the need to recalculate child support as a result of the new parenting arrangements relative to both E.K. and J.K. I would further direct that the Respondent is to pay s 3 child support in the amount of $1291.90 per month for 2021 and for the months of January to March 2022, inclusive. Costs [ 59 ] Each party will be responsible for their own costs relative to this application. Heard on the 2 nd day of September, 2021. Dated at the City of Edmonton, Alberta this 12 th day of November, 2021. M. David Gates J.C.Q.B.A. Appearances: France Perreault Appearing on her own behalf Warren Kendall Appearing on his own behalf