Fraser v Jacobsen-Fraser, 2021 ABQB 955

Court of Queen’s Bench of Alberta Citation: Fraser v Jacobsen-Fraser, 2021 ABQB 955 Date: 20211201 Docket: 4803 146507 Registry: Edmonton Between: Glenn Adair Fraser Applicant - and - Annette Caroline Jacobsen-Fraser Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M.J. Lema _______________________________________________________ A. Introduction [ 1 ] Mr.

Fraser applied in Chambers on November 23, 2021, for an order declaring that, as of September 1, 2021, the parties’ 18- year-old daughter is no longer a “child of the marriage” and also staying enforcement of child support arrears. [ 2 ] I find that the daughter is still a “child of the marriage” and that she has been since turning 18 earlier this year. [ 3 ] I dismiss the stay application without prejudice to Mr. Fraser’s right to re-apply if he clears certain statutory hurdles

(discussed below). B. “Child of the Marriage” “Child of the marriage” – statutory provision [4] Concerning whether the daughter remains a "child of the marriage", I first reproduce the definition of that term in ss. 2(1) ofthe Divorce Act: child of the marriage means 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a) is under the age of majority and who has not withdrawn from their charge, (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdrawfrom their charge or to obtain the necessaries of life[.] "Child of the marriage" – gap-year case law [5] Many cases recognize that pursuing post-secondary education may be a sufficient "other cause" for adult children to be"unable ... to withdraw from [their parents'] charge or to obtain the necessaries of life." [6] The particular issue here is whether the daughter should retain this status for what is effectively a one-year "gap period" i.e.after completing high school (in spring 2021) and before her target program (biotech lab studies) is next offered at the Northern AlbertaInstitute of Technology (September 2022). [7] A number of cases have examined whether an adult child does or may retain "child of the marriage" status during a gapbetween the end of high school and the start of a secondary program. [8] In LRP v BJP, 2013 ABQB 685, Graesser J. recognized such a period: Tughan v Tughan, , [2003] O.T.C. 595 (OSC) is also authority for the point that adult children can remain childrenof the marriage if there are valid reasons why they have not been able to become self-sufficient.

There, the parties’ daughtergraduated from high school, but was missing three courses for university entrance. She planned to upgrade, but the courses were notavailable until the next term. While she waited for the term, she found part-time employment. She was held to remain a child ofthe marriage during that interval. It is noteworthy that her part-time income was in evidence, as was the fact that she had learningdisabilities. That case talks about a “grace period” between high school and post-secondary education, and refers to Ontario cases supporting thatprinciple.

In certain circumstances, I consider a grace period to be appropriate both before post-secondary education starts and after it ends.Some children cannot gain entrance immediately after graduation and require upgrading. Some children cannot find jobsimmediately on graduation from their post-secondary education and require some time to become self-sufficient. Parents do not have to pay for a “gap year” of travel, but if a child requires a reasonable period of time to upgrade to gain post-secondary admission, the child may well continue to be a child of the marriage during that period.

Even after the upgrading iscomplete, there may also be a gap between completion of the necessary upgrading and commencement of the post-secondaryprogram. Programs may not be available until the following term, which leaves the child in some sort of limbo until the programbegins. That may be July and August for some children, May to September for others, or September to January for others.

While the child may be working during that interval, if the child is living with one of the parents, you would expect the child tobe responsible for many of his or her own expenses as well as being required to save for education expenses. Depending on theirlevels of income, they may still be children of the marriage. If there is any lengthy gap, children should be working and their incomesmust be disclosed so that the court can determine what level of support (if any) is required, and what they are able to pay for and save forthemselves.

Most children should contribute in some way to their educations and not expect their parents to bear the full cost. [paras 52-54 and 56-56] [emphasis added] [9] In Bednarz v Bednarz, 2015 ABQB 477, Hunt-McDonald J. found continuing "child of the marriage" status despite a "gapyear" during which, despite part-time employment, the child "was not economically self-sufficient" (para 44). [10] In Hoskins v Magee, 2021 ONSC 6319, Monahan J. held: ... courts have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educationalprogram, may nonetheless remain a child of the marriage.

Similarly, courts have held that a child may require a modest transition periodafter completing an educational program in order to search for employment. However, apart from these brief periods, courts willgenerally require full-time attendance at school for an adult child to maintain his or her dependent status. As Charney J. noted inEdwards v.

Edwards, adult children “cannot simply choose to remain economically dependent on a parent, they must be “unable”to withdraw from the parents charge.” Moreover, adult children cannot accumulate multiple gap years to forestall their independence.[para 24] [emphasis added] [footnotes omitted]

[11] In Edwards v Edwards, 2021 ONSC 1550, Charney J. reached the same ("courts have found ...") view: There are many cases in which courts have found that a child taking a “gap year” before starting post-secondary studies, or abrief hiatus from an educational program, may nonetheless remain a “child of the marriage”: see, for example: Boomhour v.Huskinson, (ON SC), at para.46; Erb v. Erb, 2003 (ON SC), at para.54; Leonard v. Leonard, 2019 ONSC 4848, atpara. 55; Musgrave v. Musgrave, 2013 ONSC 7481, at paras. 38-39.

Where children have taken a gap year to earn money for post-secondary education, these earning may be taken into consideration whendetermining a parent’s support obligations, and the adult child may be expected to contribute some of their own income made during thegap year to the costs of post-secondary education: Menegaldo, at para.174, Leonard, at para.60; Lewi v. Lewi, (ONCA), at paras. 47 and 141. In the present case, I am satisfied that both children should be permitted to take a “gap year” in order to “figure out” what theywant to do.

Both children graduated from high school when they were 17 years of age, and turned 18 the following autumn. It isnot unusual for minor children to take a “gap year” before they are ready to attend post-secondary education, and they do notnecessarily lose their dependant status as soon as they turn 18 years of age. An adult child cannot, however, indefinitely postpone the commencement of post-secondary education and expect to remain adependant, entitled to parental financial support.

In the absence of “illness or disability” or some other cause that makes him“unable” to attend school, he no longer qualifies as a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act. [paras 37and 43-45] [emphasis added] [12] In Saujani v Saujani, 2021 BCSC 1550, McDonald J. took the same view: Ms. Matus submitted that I.S.S. remains a child of the marriage because she currently attends post-secondary education on a full-timebasis. Ms. Matus stated that I.S.S. took a gap year after graduating from secondary school. During the gap year, I.S.S. workedpart-time and she lived with Ms. Matus.

After assessing the evidence as a whole, I am satisfied that I.S.S. continues to be a child of the marriage. The fact that she took a gapyear while she was between the ages of 17 and 18 does not alter my finding.

She is presently attending post-secondary education.While I.S.S. has pursued some part-time work, I find that she cannot meaningfully contribute to her own costs at this stage ofher life. [paras 148-149] [emphasis added] Application of those principles here [13] The mother advised that, because of the Covid-19 pandemic, the daughter's target program was not offered in 2021-22, that itis expected to be offered in 2022-23, that in the meantime the daughter has picked up a part-time job (four nights a week, four hours ashift), that she (the mother) is still supporting her, that the daughter is a "very good student" and has sufficient high school marks foradmittance to her target program (i.e. no need for upgrading work during this waiting year), and that she continues to support thedaughter as a full dependant. [14] The father emphasized that the daughter has "not been formally accepted into the program" and that it is not even certain itwill be offered in 22-23 ("there may be a fifth or even sixth [pandemic] wave"). [15] Applying the guidance of the above cases, I find that the daughter has continued, since turning 18, to be a "child of themarriage" and that she will retain that status if the status quo continues i.e. if she continues working at her current (relatively limited)part-time employment and aiming at her target program for 22-23, taking timely steps (as applicable) to register for that program andotherwise continues to set her sights on it. [16] The keys are that she has an actual target program in sight (i.e. not simply a vague "may go to school" idea), the evidenceshows that the program is not currently being offered (i.e. in the 21-21 academic year) and is next being offered in 22-23, no evidenceshows that the same or equivalent program is available elsewhere in the Edmonton area in 21-22, the daughter is apparently well-qualified (at least grades-wise) for the program, and the program appears (on the limited evidence) to be a stepping-stone to paidemployment eventually.

C. Stay of Enforcement [17] The second branch of Mr. Fraser's application is for a stay of enforcement of his existing support arrears. [18] He advised that he had spoken with an adviser at MEP and advised him or her of his intention to apply for a stay. [19] That does not appear to be enough. [20] Here are ss 32(1) and (2) of the Maintenance Enforcement Act: 32(1) If the Director has issued a support deduction notice or a creditor has obtained an order for payment under

section 19, the debtormay apply to the Court of Queen’s Bench for a stay of those proceedings, and a copy of the application must be served by the

applicant on the Director and the creditor.

(2) A stay of enforcement may be granted under this

section with respect to the issuance of a support deduction notice only if the Court is satisfied that (

a) the debtor has made attempts to establish a payment arrangement with the Director and there was a valid reason why the debtor was unable to enter into an arrangement, and (

b) the debtor has a valid reason for not paying arrears or periodic maintenance payments during the period the stay of enforcement is in effect. [ 21 ] The Alberta cases show that actual service of the stay application is required, i.e. not just informal notice to MEP staff, not to mention the required “attempts to establish a payment arrangement with the Director ....” [ 22 ] Mahoney J. so held in SS v AS , 2020 ABQB 810 : The Father points out the Mother has given no notice to the Director of Maintenance Enforcement nor any evidence to this court that she has tried to make arrangements with the Director regarding payments owed as required by s. 32 of Maintenance Enforcement Act RSA 2000m c.

M-1. In additional to failing to comply with s. 32, I find that the Mother has no valid reason for a stay order. … [paras 85-86] [emphasis added] [ 23 ] In Kowalski v Kowalski , 2009 ABQB 294 , Burrows J. held the same: Mr. Moroz submits that by virtue of s.32(9) of the Maintenance Enforcement Act [part of the predecessor to the current s 32] notice of an application to suspend a Support Deduction Notice need only be served on the Director. This is a misinterpretation of the provision. It requires that the Director be served.

It does not relieve the judgment debtor from serving the judgment creditor as well as the Director. [para 21] [emphasis added] [ 24 ] See also Read J. in Anderson v Laboucan , 2017 ABQB 642 : … this Court has authority to order a stay of enforcement only if the debtor has given notice of the application to MEP as well as to the creditor and only if the debtor has first tried to make an arrangement with MEP. However, the Court must be satisfied that the debtor has a valid reason for not paying arrears at the time the stay order will be in effect, in other words at the date of the application and going forward.

Further the stay does not operate with respect to ongoing support payments unless the Court specifies otherwise. [para 76] [emphasis added] [ 25 ] And Veit J. in Beko v Beko , 2017 ABQB 392

Section 32 of the Maintenance Enforcement Act does not give this court jurisdiction to deal with Mr. Beko’s application. The first problem with the potential use of that

section is that Mr. Beko has not complied with s. 32(9) by giving notice of his application to the Director. That breach of a statutory requirement would be sufficient, on its own, to deny Mr. Beko’s application if he were making it pursuant to s. 32. Although Mr. Beko does not identify the provision in the Act on which he relies, he may be relying on s. 32 of the Act. However, there are two problems in relation to that section; the first, which, alone, would constitute a basis for denying the application, is that Mr. Beko has failed to give notice to the Director of his application as mandated by s. 32(9) of the Act. [paras 4 (from Veit J.’s

summary) and 22] [emphasis added] [ 26 ] In the current case, Mr. Fraser advised of his current unemployment. That may be sufficient reason for not paying arrears or ongoing maintenance. [ 27 ] However, the Maintenance Enforcement Act requires that his circumstances be brought to the Director’s attention formally (i.e. via service application) and that he first attempts to establish a payment arrangement with MEP or show why no such arrangement is currently possible. [ 28 ] I am not satisfied that Mr. Fraser’s “told MEP about this” evidence is sufficient in light of those statutory hurdles. D.

Conclusion [ 29 ] The daughter is still a “child of the marriage” and has been since turning 18 in the spring of this year. [ 30 ] Mr. Fraser has not satisfied the statutory preconditions for stay relief. [ 31 ] I dismiss the later application without prejudice to his right to re-apply after clearing the statutory hurdles (if he is able to do). [ 32 ] I seize myself with any such follow-up application.

Heard on the 23 rd day of November, 2021. Dated at the City of Edmonton, Alberta this 1 st day of December, 2021. M. J. Lema J.C.Q.B.A. Appearances: Glenn Fraser, on his own behalf Annette Jacobsen-Fraser, on her own behalf