J.E.O., Petitioner (Responding Party), v. J.C.O.,, 2011 NBQB 56

2011NBQB056 Court No.FDF-472-99 Registrar’s No: 1301-44412 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: J.E.O., Petitioner (Responding Party), -and- J.C.O., Respondent (Moving Party) REASONS FOR DECISION Date of Hearing: January 12, 2011 Date of Submissions: January 13, 2011 Date of Decision: February 21, 2011 Before: Madam Justice Anne D. Wooder

Representation of parties at hearing: Kelly A. Driscoll, Esqe., Solicitor for the Petitioner Howard T. Myatt, Esq., Solicitor for the Respondent I. INTRODUCTION: [ 1 .] This motion, as amended, filed by J.C.O. seeks a finding that J.C.O.’s child support obligations should be reduced because one of the two children for whom support is paid is over the age of majority and has terminated her relationship with him.

The child is presently attending university full time. [ 2 .] Other relief requested in the motion was resolved by way of an Agreed Statement of Facts filed prior to the hearing, by way of agreements placed on the record during the course of submissions that have since been finalized by Consent Orders, and a Further Agreed Statement of Facts filed following the hearing.

The relief included an agreement with respect to J.C.O.’s income for 2007, 2008, 2009 with a consequential agreement with respect to the amount of the overpayment of child support, and a consent with respect to the management and administration by J.C.O. of a Registered Education Savings Plan that had been registered in the parties’ joint names. [ 3 .] In addition, the parties agreed to an interim reduction in child support, which was the inevitable result regardless of the outcome of the motion.

The issue is the amount by which the child support will be reduced. [ 4 .] The manner in which the overpayment of child support should be paid by J.E.O. is in dispute. II. BACKGROUND AND PARTIES’ POSITIONS: [ 5 .] J.E.O. and J.C.O. were married on October […], 1989 and were divorced by Order of the Court dated September 10, 2001. At that time there were three children of the marriage.

J.E.O. had a daughter, C.M. (date of birth September […], 1982) for whom J.C.O. acknowledged he stood in the place of a parent; the parties had two children during their marriage, B.O. (date of birth April […], 1991) and R.O. (R.O.) (date of birth October […], 1992). Orders for custody, access, child support and spousal support were made corollary to the divorce and on consent. [ 6 .] The Consent Order that was incorporated into the Order for Corollary Relief provided for the joint legal and equal shared physical custody of B.O. and R.O.. These are the two children for whom J.C.O. presently pays support.

B.O. turned 19 years of age on April […], 2010. R.O. is 18 years old. He will turn 19 on October […], 2011. Support for C.M. terminated on August 31, 2005. [ 7 .] Although copies of all of the Orders between the parties were not included in the motion record or placed in evidence, it appears that custody, access, and child support were varied by Orders of December 6, 2002 (following hearing of a motion), September 27, 2005 (on consent), and March 1, 2006 (on consent).

The latter varied B.O.’s primary physical custodial care such that she resided primarily with J.E.O.; fixed an amount overpaid in child support; reduced child support; and provided for the payment by J.E.O. of the overpayment. [ 8 .] B.O. graduated from high school in June 2009 and began attending university at the Fredericton campus of the University of New Brunswick in the Fall of that year in a Bachelor of Arts program. She quickly realized that was not a good decision for her and withdrew. B.O. then remained at home with J.E.O., working part time.

She enrolled at the University of Guelph in a four year Bachelor of Bio-Resource Management program that began in September of 2010.

[ 9 .] It is J.C.O.’s position that B.O. is no longer a child of the marriage, due to fact that he and B.O. have had no relationship for some time. He describes this reality as the result of B.O.’s rejection of him, and the consequence of J.E.O.’s campaign of alienation. I did not understand J.C.O. to allege “alienation” as a psychological or psychiatric concept. Certainly there was no evidence upon which such a conclusion could be reached. [ 10 .] J.E.O. says that B.O. throughout has remained a child of the marriage and that support for her should continue.

She acknowledges that B.O. and J.C.O. have no relationship and says that is the result of J.C.O.’s treatment of B.O.. [ 11 .] Only the parties testified. III. ISSUES: A). What has B.O.’s status been since April […], 2010 when she turned 19? If she is a child of the marriage, and given the parties’ agreement with respect to J.C.O.’s income, what is the appropriate child support order? B). How should J.E.O. pay J.C.O. for the child support he has overpaid? C). What is the appropriate costs order? IV.

EVIDENCE: [ 12 .] As noted above, pursuant to the Order for Corollary Relief the parties shared the physical custody of the children. According to J.C.O., he embraced the opportunity to be an active and involved parent and J.E.O. embarked on a campaign to alienate the children from him.

According to J.E.O., J.C.O. continued to treat the children as he had during the marriage – harshly and at times abusively – and she struggled to deal with the impact of that on the children while attempting to adhere to the terms of the court order. [ 13 .] A motion filed by J.E.O. in May 2004 resulted in the variation of the order as it related to B.O.’s custody and access.

The Consent Order dated March 1, 2006 reads, in part, as follows: “AND WHEREAS a family assessment was conducted with respect to the Petitioner, the Respondent and the child B.O. and recommendations were made as a result of [sic] thereof, including that the custody of B.O. remain joint under certain conditions with the primary residence of B.O. being with the Petitioner; AND WHEREAS the Petitioner and the Respondent believe that the said recommendations are in the best interest of the child, B.O., and the parties wish to amend the terms of the Order for Corollary Relief and Custody Order accordingly; * * * 7.

The Respondent shall seek training in anger management and seek individual therapy to address issues as outlined in the family assessment forthwith.

Three (3) months after the date the Respondent commences such training and therapy, and providing that the Respondent continues with such training and therapy regularly for the entire three (3) month period, the Petitioner and the Respondent shall together attend regular joint counselling sessions in order to improve communication and negotiation with respect to the decision making and parenting of the child B.O. and also the child R.O. (R.O.) . (emphasis added) [ 14 .] B.O. was thirteen years old when the motion was filed, and almost fifteen when the above Consent Order was finalized.

The assessment referred to was not placed in evidence. B.O. remained in J.E.O.’s primary care. There was no evidence with respect to any joint counselling sessions or their outcome.

[ 15 .] In cross-examination with respect to these provisions, J.C.O. said, simply, that he was prepared to do anything, even participate in anger management that he did not need, to be able to remain involved in his children’s lives. He spoke of the programs in which he participated, including For the Sake of the Children, and a parenting course offered at UNB.

He portrayed himself as a caring and involved parent who fell victim to J.E.O. and who, ultimately, had to “remove” himself from the situation because he realized that he was the “problem”. [ 16 .] J.C.O. says there was persistent, and ultimately successful, alienation of him from the children. J.E.O. says that the impaired relationships between all of the children and their father were the result of his conduct and treatment of them, that it remained unchanged after separation, and that she felt relatively helpless to do anything about the children’s complaints.

J.C.O. mentioned “two or three” complaints made by J.E.O. to what is now the Department of Social Development, however this evidence was not expanded upon by either party. [ 17 .] Two specific events were mentioned by the parties as significant. Sometime in an unspecified date in 2003 or 2004, J.C.O. purchased a horse, Brownie, for B.O.. Both parties agreed that B.O. loved Brownie and that her relationship with him was a therapeutic one for her. As part of the purchase, J.C.O. testified that he and B.O. signed a contract, the specifics of which were not placed in evidence.

However, it seems to have outlined B.O.’s responsibilities toward horse ownership and appropriate conduct in the horse barn. Ultimately, J.C.O. sold Brownie. He says the decision followed three months during which B.O. did not go near the horse and after he gave her notice that he intended to sell Brownie because she was not living up to her obligations under the contract. According to J.E.O., B.O. complained that J.C.O. used Brownie as a means of controlling B.O. but that she loved the horse so much she was prepared to tolerate the conduct. However, it ended badly.

J.E.O. testified that B.O. arrived home one day, completely distraught and upset because J.C.O. had told her that he was selling Brownie for “dog food”. B.O. believed her father to be capable of such

an act, and decided that she could not spend any more time with Brownie if she was going to end up losing the horse, which she loved. She did not visit the horse again and it was sold by J.C.O.. J.E.O. said that “hurt her (B.O.) to the bottom of her heart.” [ 18 .] J.C.O. said that alienation could be the only reason why B.O. would give up a horse that she loved. He denied threatening to sell the horse for “dog food.” [ 19 .] During the Spring Break in March 2007, after determining that her father would not be in his house, B.O. hosted an event at her father’s home which turned into a free for all.

J.C.O. testified that the house was trashed and that approximately $9,000.00 worth of items were stolen. He attributed what he characterized as a display of disrespect for him and for his home as the effect of J.E.O.’s alienating conduct. There was no evidence presented on which such a conclusion can be drawn. In fact, J.E.O.’s conduct suggests that she was equally upset by B.O.’s conduct and attempted to address it in an appropriate fashion. She drove B.O. to her father’s house the following morning so she could speak with him and watched as J.C.O. slammed the door in B.O.’s face.

Although J.C.O. denied slamming the door, he did say that he refused to speak with B.O. and that he closed the door in her face. When he showed up later that day at J.E.O.’s home to discuss the matter and attempt to obtain some information from B.O., he was not refused entry. Ultimately, and with information provided by various parents and by B.O., some of the stolen items were recovered and some individuals were charged.

J.E.O. testified that J.C.O. called her home fifteen to twenty times one day in the aftermath of the event trying to obtain information about who had been at the party. [ 20 .] J.E.O. testified that following this incident, B.O. withdrew to the point where she was taken by her mother to see a psychiatrist. (I note parenthetically that J.E.O. is a nurse employed by the River Valley Health Authority, working on the psychiatric ward of the hospital.) B.O. was reluctant to return to school because her father had informed her that there would be an announcement over the public address system at school with respect to the party informing students that police were involved.

Following a discussion with the principal during which assurances were offered that no such announcement could be made, B.O. returned to school. [ 21 .] J.C.O. testified that the party was a “factor” in the deterioration in his relationship with B.O.. [ 22 .] B.O. visited her father briefly over the Christmas holiday period in 2007. That was the last contact between them. B.O. did not invite her father to her high school graduation and told him when he asked her for an invitation that she had only a limited number and that she had given them all away. He was able to obtain one from the principal.

J.C.O. remembers birthdays and Christmases with cards and modest gifts of money which are not acknowledged. He was not informed of B.O.’s decision to attend either UNB or the University of Guelph until after the fact. He was not given a copy of her marks. He was removed by both B.O. and R.O. as a “friend” on their Facebook accounts. His email communications to B.O. have been rebuffed. There is no doubt that there has been a breakdown in their relationship. [ 23 .] Tab 10 of Exhibit 1 was offered by J.C.O. as proof of B.O.’s reflection of him. It is an exchange of emails that read as

follows: J.C.O. November 19 How are things going? B.O. November 19 Stop pretending to care. Please go back to forgetting you have a daughter. J.C.O. November 22 Time to stop trying to beat me and yourself up for things that have happened. We can’t change those things. We can only change the future. I am interested in knowing how you are doing! B.O. November 22 Things that never happened? Please enlighten me, and to change the future you have some apologizing to do. J.C.O. November 23 B.O., you need to decide if you want a relationship with me.

If you do, then you and I will work on the steps necessary to make it happen. Looking forward to a positive response. Dad [ 24 .] J.E.O. characterized the situation, effectively, as the result of B.O.’s inability to know how to manage her relationship with her father after years of his unkindness and even abuse of her. She said J.C.O. was mean, unkind, and controlling during their marriage and that the children saw this and were themselves the victims of J.C.O., who would yank them by their ears or their arms.

She described occasions when B.O. would call her in secret from J.C.O.’s home because he would not permit telephone calls to J.E.O. during his time with the children. It is sometimes difficult to reach conclusions in cases where only the parties testify and their testimony diverges. Neither party appeared more obviously credible than the other, although J.C.O. presented as somewhat self-satisfied. The Consent Order that varied B.O.’s primary residence is an express acknowledgement that J.C.O. was to “seek training in anger management” and “individual therapy” to address other issues that were not identified.

If J.C.O. took exception with the family assessment or its’ recommendations he was under absolutely no obligation to sign a Consent Order that appears to have been the result of both. In and of itself, it declares that J.C.O.’s conduct was a relevant factor in the change in B.O.’s residence. [ 25 .] Apart from the fact that the parties have returned with some degree of regularity to court over the past ten years, there was nothing in the evidence to support J.C.O.’s allegation that J.E.O. has engaged in a dedicated campaign of alienation. Nor was her testimony challenged on cross-examination.

She said, effectively, that she was the buffer for the children, that she encouraged them to spend the assigned time with their father, that she did what she could to reassure the children when they arrived home from their father’s upset.

J.E.O. testified that she suggested to B.O. that her father be invited to her high school graduation and informed of her education plans and that B.O. was unequivocal that she did not want her father informed or involved. [ 26 .] J.C.O. spoke at some length about the registered education savings plan during his testimony, essentially attributing mala fides to J.E.O.’s use of the funds, what he characterized as her refusal to communicate with him with respect to the account, her failure to re-deposit the funds that B.O. received back when she withdrew from UNB, and J.E.O.’s questioning of fees paid to J.C.O. for transactions in the account.

There is no doubt that the RESP has been a source of some conflict. J.C.O. is employed as a Portfolio Manager with Wellington West Capital and considers that he has the expertise to manage the account. J.E.O. agreed during the hearing that he should do so. V. LAW AND ANALYSIS: A). What has B.O.’s status been since April […], 2010 when she turned 19? If she is a child of the marriage, and given the parties’ agreement with respect to J.C.O.’s income, what is the appropriate child support order?

[27.]

Section 17.(1) of the Divorce Act gives courts the jurisdiction to vary orders for child support, both retroactively andprospectively. Because child support is payable only for a “child of the marriage”, the loss of such status results in a variation of anyexisting order. “Child of the marriage” is defined in

section 2 of the Act to mean: 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 theircharge or to obtain the necessaries of life. [28.] Post secondary pursuits have long been held to constitute “other cause”. Each case is fact specific. See: Tapson v. Tapson 1969 CarswellOnt 109 (C.A.) and, generally, Julien D. Payne and Marilyn A Payne, “Canadian Family Law”, 3rd ed., 2008 atparagraphs 377 to 381. [29.] The onus is on J.C.O. to prove the change in circumstances on which he relies.

The evidence confirms that, as of April[…], 2010, B.O. was 19 years of age, not in attendance at any educational institution, working, and living full time with J.E.O.. Whenher plans to attend the University of Guelph crystallized was not entirely clear, however, she has been in full time attendance at thatinstitution since September 2010. [30.] Given the evidence, it is the court’s view that for the period from April 2010 until the end of August 2010, B.O. wasnot a child of the marriage. [31.] J.E.O. wants support for B.O. to continue.

She, then, has the onus of proving that B.O. regained her status as a child ofthe marriage for whom support is owed. There can be no dispute the child who has lost such a status can regain it. See V.(M.) vV.(D.) 2005 CarswellNB 686 (Ct.Q.B.). [32.] The jurisprudential reference points, when considering the question of whether a child over the age of majority is a childof the marriage, are most often the Manitoba Court of Appeal’s decision in Rebenchuk v. Rebenchuk 2007 MBCA 22 , 2007CarswellMan 59 and the decision of Master Joyce in Farden v. Farden 1993 CarswellBC.

Distillations of the factors to be consideredare set out in paragraphs 41 to 43 of Rebenchuk: 41 The Manitoba authorities suggest that the following questions need to be addressed when determining whether support iswarranted: 1. What would the parents have decided if their marriage had remained intact? 2. To what degree is the child able to earn an income to contribute to his or her own education? 3. Are the child's living expenses reasonable? 4. Are the child's career plans reasonable? 5. Is the child likely to benefit from the program of study? 6.

Is part-time employment available and, if so, would it harm the student's ability to benefit from her studies? 7. Has there been an unjustified unilateral termination of a relationship with the payor parent? 8. Is the student eligible for student loans or other financial assistance? These factors, of course, are neither all inclusive nor applicable in every factual situation before the court. 42 Authorities from other provinces are generally supportive of the foregoing conclusions.

In British Columbia, for example, theCourt of Appeal in Darlington approved an oft referred to list of factors to be relied upon as first propounded by Master Joyce in Fardenv. Farden (1993), (BC SC), 48 R.F.L. (3d) 60 (B.C. Master) (at pp. 64-65): (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 college becausethere 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; (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. 43 As Donald J.A. noted, however, the list is not exhaustive nor need all factors be addressed.

The key is whether the child is"dependent" (at para. 16). [33.] J.C.O.’s principal argument was that B.O. has terminated her relationship with him. He took no issue with her career planor choice of studies, the fact that she works only part time, the reasonableness of her living or financial arrangements. He certainly didnot suggest that B.O. should not attend university, or that the program selected by B.O. is incompatible with her abilities and interests.

Although he was critical of the absence of documentary support for B.O.’s financial picture, as testified to by J.E.O., he took noexception with the facts as presented. His single largest criticism was the absence of any relationship between him and B.O., the blamefor which he placed on her (while alleging that it was the result of J.E.O.’s alienating conduct). [34.] Pazaratz, J in Caterini v.

Zaccaria 2010 ONSC 6473 , 2010 CarswellOnt 9344 (Superior Court of Justice),undertook a comprehensive review of cases in which estrangement or repudiation has been pleaded as reason for a court to either lift theobligation to pay child support or refuse to impose such an obligation. In coming to the conclusion that the payor father in Caterinishould continue to pay support for his adult child, Justice Pazaratz said: 127 This case illustrates some of the inevitable difficulties which arise when an adult child's entitlement to support is tied to thequality of their relationship with the payor.

Parent-child relationships are very complex, with lots of history - just like spousalrelationships. We don't require that otherwise dependant spouses "be nice" or get along with payors in order to qualify for support. Tothe contrary, we have systematically tried to remove "fault" or "conduct" from the equation, in approaching spousal support as a purelyeconomic model. 128 Spousal support usually arises at precisely the moment when parties are not getting along.

Sometimes we actually orderspouses to stay away from one another, through restraining orders - and yet we still order spousal support if appropriate. 129 On what basis do we consider the current status of the father-child relationship as potentially precluding or reducing support, incircumstances where the child is otherwise dependant and entitled? 130 Law was decided under the 1970 Divorce Act which specifically authorized consideration of "conduct of the parties". Whittonwas decided under the 1985 Divorce Act, which removed "conduct" as a consideration.

This fundamental change was not addressed whenthe Court of Appeal in Whitton adopted Fleury J.'s "estranged child" commentary in Law, under the earlier legislation. 131 There is no express statutory basis for depriving an otherwise dependant adult child of support, because of a breakdown in thechild's relationship with the payor. [35.] At paragraph 146, the court said: 146 In both Farden and Bradley v. Zaba, (supra) the non-exhaustive lists include consideration of "unilateral" conduct by the child.Not just a breakdown in the parent-child relationship. Not just an argument; or a falling out; or a drifting apart.

But rather, "unilateraltermination of a relationship" - almost akin to a material change in circumstances analysis. [36.] In Starr v. Starr 2008 CarswellMan 569 (Court of Queen’s Bench), Rivoalen, J. held as follows at the conclusion of hisreview of the jurisprudence:

32 Arguments based on estrangement have no place in cases where the support of a minor child is concerned. In this context the relationship that exists between a parent and his or her child has no bearing on the obligation to pay support. The quality of the child- parent relationship, or even its non-existence, is irrelevant to the obligation. The interests of the parent give way to interests of the child. 33 The interests of children do not become irrelevant when a child of a marriage, or indeed of any union, passes from minority to adulthood. In adulthood, the interests of children merely lose their supremacy.

That is one of many things that changes at law upon the passage to adulthood. Adult children seeking support are considered in a different light than that which falls upon minors. Unlike their younger counterparts, the interests of adult children may equitably be balanced against those of others and subordinated in some circumstances. 34 The autonomy of adulthood brings with it greater independence and corresponding responsibility. Hence, courts take a broader approach when considering a parent's obligation to support an adult child than when dealing with a parent's obligation to support a minor.

Many factors are common to both approaches, but there are additional elements to be weighed in the balance on the former approach. 35 It must not be forgotten that a parent's obligation to pay support is never founded upon consideration. There is no quid pro quo ; child support is not exchanged for access. When dealing with adult children, this remains true. This is one reason why the estrangement of an adult child does not operate automatically or inevitably to extinguish the support obligation for that child.

A non-custodial parent may have no access to an estranged adult child, and yet the law will in appropriate circumstances recognize and impose a support obligation. The furtherance of an adult child's education is just one easily identified societal goal that is fostered by the imposition of such an obligation. 36 Estrangement is not determinative of whether a support obligation should cease. It is but one of many factors to be considered, albeit an important one. Those factors and the governing principles are found in case law and section 3(2) of the Federal Child Support Guidelines.

They have often been considered and applied by the courts of this province and elsewhere. [ 37 .] Against this backdrop, the analysis is as follows. [ 38 .] If these parties had remained together, there is no doubt that they would have encouraged B.O. to attend university. J.C.O. testified that one of the first things they did when the children were born was to open an RESP. [ 39 .] According to J.E.O., B.O. works part time during the school year. The exact amount she earns was not precisely established, however, it is in the order of $150.00 to $300.00 monthly.

Those funds are deposited directly to J.E.O.’s bank account. She makes regular monthly payments of $600.00 to B.O. - $500.00 for her room and board, and $100.00 towards the cost of maintaining B.O.’s horse (purchased with financial assistance from J.E.O.). [ 40 .] B.O.’s living expenses include $500.00 monthly for room and board with a family. She requires a vehicle to travel to and from university because the family with whom she resides lives outside of the city. B.O. has expenses associate with the maintenance and care of her horse, which is used by her in the course of her studies.

There is an equine component to her courses (see Exhibit 5). [ 41 .] As noted above, J.E.O. sends $600.00 monthly to B.O. to help her with her living expenses. B.O.’s tuition and books were approximately $7,000.00. There was no evidence with respect to student fees or other charges. B.O. used the balance of approximately $6,500.00 that was available from the initial RESP withdrawal of $7,000.00, returned to her when she withdrew from UNB. She also applied for a student loan and received approximately $2,600.00 in funding. There was no evidence of the amount contributed from summer employment.

J.E.O. purchased a laptop computer for B.O.’s use. [ 42 .] The reasonableness of B.O.’s career plans was not challenged. Based on the evidence before the court, they seem appropriate. If she completes her studies successfully, B.O. will receive a Bachelor’s Degree in Bio-Resource Management. According to J.E.O., the degree will allow B.O. to run/manage a farming/horse barn business. She has always had an interest in horses. Her program of study is compatible with her interests. [ 43 .] Whether there has been “an unjustified unilateral termination” by B.O. of her relationship with J.C.O. is very doubtful.

There was insufficient evidence on which a conclusion could be drawn that B.O.’s rejection of her father is unjustified or that there has been a unilateral termination of the relationship. Before a court comes to the conclusion that a breakdown in the relationship between a parent and an adult child is the consequence of the adult child’s “rejection” that is “unjustified”, in my view there must be cogent evidence of both. It is certainly safe to say that B.O. is rejecting her father right now. That her conduct is “unjustified” is not a conclusion that can safely be reached on the evidence presented.

As was pointed out by Pazaratz, J. in Caterini , parent-child

relationships are very complex, with much history. [ 44 .] J.C.O. testified that: - He has no relationship with C.M.; - He has no relationship with B.O. and last saw her in December 2007; - A fractured relationship with R.O. has only recently showed signs of healing and he and R.O. now see each other every couple of weeks. B.O. is not the exception in the sibling group. [ 45 .] J.C.O. described one altercation with R.O. which ended physically, with R.O. jumping on J.C.O.’s back and trying to choke him.

He described an incident involving B.O. when she was perhaps 12 or so, in which he “shook” a screwdriver he was holding at her and threw a chair across her bedroom. This was the culmination of a “time out” imposed on B.O. during which she was able to maintain a persistently and annoying loud wail for five or ten minutes. [ 46 .] J.E.O. testified that B.O. often came back from J.C.O.’s with complaints of how her father had treated her. On at least one occasion B.O. had marks on her arm which she said were the result of J.C.O. having grabbed her. [ 47 .] J.C.O. said that J.E.O. has alienated the children.

If so, that is not B.O.’s fault. If not, the evidence failed to satisfy this Court that B.O.’s present position is “unjustified” either by reference to some objectively measured and reasoned rationale, or some subjectively held view. Further, the termination appears to be a qualified one. B.O. wants an apology. (See Exhibit 3, Tab 10). J.C.O. has placed the responsibility for any continued dialogue on B.O.’s shoulders. [ 48 .] Taking into consideration all of the evidence, it is the court’s view that B.O. regained status as a child of the marriage with her attendance at university in September 2010.

The fractured state of B.O.’s relationship with her father is not sufficient, when considered with the other evidence, to justify a denial of child support. [ 49 .] Given that the pursuit of a post-secondary degree forms the basis of B.O.’s continued dependence, it is not unreasonable to require some ongoing proof for J.C.O. of B.O.’s situation.

For so long as child support is paid for B.O., the petitioner shall provide to the respondent the following: - Written confirmation from the educational institution of B.O.’s registration and whether it is full or part time; and - A copy of B.O.’s marks within thirty days of the date on which they issued; [ 50 .] J.C.O.’s obligation was to pay support for two children as of September 2010. Given that J.C.O.’s income was not in issue and that the quantum is to be determined under section 3(2)(

a) of the Guidelines (J.C.O.’s motion to amend his pleading at the beginning of submissions to include a request that support be determined under section 3(2)(

b) having been denied), child support will be set by reference to the Tables. See: We seman v Weseman 1999 CarswellBC 1347 (B.C.S.C.) VI. REPAYMENT OF CHILD SUPPORT: B). How should J.E.O. pay J.C.O. for the child support he has overpaid? [ 51 .] The Agreed Statement of Facts provided for two outcomes, neither of which was the result of this decision. If support for

B.O. stopped as of April 2010, the agreed upon overpayment would have been $31,000.00. If support continued, then the overpayment would have been $36,000.00 inclusive of January 2011. If support stopped and then started, there was no agreed upon number. At the conclusion of the hearing, counsel for the parties indicated that they could agree on the amount of the overpayment for this third scenario.

That amount was agreed to be $33,464.00 in the Further Agreed Statement of Facts. [ 52 .] As a consequence of this decision, for May to August, inclusive, of 2010, J.C.O. should have paid child support for R.O. based on an income of $102,897.00. According to the Tables, support in the amount of $873.00 should have been paid. Beginning in September 2010, J.C.O. should have paid support for two children. In light of the fact that the matter did not call for a determination of support under section 3(2)(

b) of the Guidelines , support should have been $1,393.00 monthly. Support in that amount will be paid each month beginning March 2011. The support for February will have already been paid pursuant to the Interim Variation Order dated January 21, 2011. Future payments will be made on the first day of each month beginning in March 2011. [ 53 .] J.E.O. filed no financial statement. She gave evidence with respect to her monthly expenses which the court estimates total $3,120.00 monthly, exclusive of union dues, licensing and registration, health insurance, and money provided to R.O. for his spending needs.

It includes a monthly payment to Dell for the laptop purchased for B.O., as well as the amounts paid each month to B.O.. According to Exhibit 3, J.E.O.’s 2010 gross income was $44,786.63; her net income was $29,503.10 or $2,458.59 monthly. Obviously J.E.O.’s income has been supplemented by the child support which, since January 2009, was $1,653.00 monthly ($19,836.00 annually) and for at least four years prior to that, $2,787.00 monthly ($33,444.00 annually). As a result of this decision, child support is obviously being reduced. [ 54 .] J.E.O. lives in an apartment the monthly rent for which is $875.00.

R.O. lives with, and is supported by, her. She testified that she was forced to sell her home because she could not afford to maintain it. She owns no other real property. [ 55 .] J.E.O. testified that she has approximately $13,000.00 in a “locked in” account. That represents the proceeds of a pension fund that she had with a previous employer. Apart from that, she has no savings and her bank account runs into overdraft each month. [ 56 .] By way of contrast, J.C.O.’s gross income for the last six months of 2010 was $127,696.37.

He deducts certain expenses for income tax purposes; those numbers were not known on the date of the hearing. He filed no financial statement. Apart from his income and the fact that he owns a home, there was no evidence with respect to his financial situation. [ 57 .] J.E.O.’s ability to pay the overpayment of child support is limited. She testified that by giving up her and R.O.’s cell phone, working more, and making other changes, she could manage a $400.00 monthly payment.

This seems optimistic, particularly given the reduction in the child support. [ 58 .] The overpayment is significant and obviously J.C.O. must be paid. J.E.O. has had the use of the overpayment, interest free. However, her financial reality cannot be ignored. In light of the above, a payment of $300.00 monthly seems reasonable.

That will leave J.E.O. with “net” child support of $1,093.00 per month, or $560.00 less monthly than she has had for the last two years. [ 59 .] By way of payments against the overpayment generated as a consequence of the Agreed Upon Statements of Facts and this decision, J.C.O. shall be entitled to withhold the sum of $300.00 monthly from the child support until the overpayment has been paid in full or until a subsequent order of the court or agreement of the parties provides for a different payment regime.

Obviously, this order does not preclude the payment by J.E.O. of any amount in excess of the $300.00 monthly, receipts for which must be provided to J.C.O.. VII. COSTS: C). What is the appropriate costs order? [ 60 .] Counsel for J.C.O. pressed for costs due largely to the fact that J.E.O.’s failure to respond to J.C.O.’s repeated requests for a recalculation of support (combined with the position taken by the enforcement office) resulted in a significant overpayment by him of support. That the overpayment was significant cannot be denied.

That it was the result of deliberate maliciousness or conduct on the part of J.E.O. cannot be concluded. J.E.O. testified that she took advice from lawyers and from the enforcement officer(s). There may also have been a certain “head in the sand” aspect – the parties have been embroiled in this dialogue for ten years due to the manner in which J.C.O.’s income was to be calculated for the purpose of determining child support and the fact that his income fluctuates. Success on the motion was divided. J.C.O. is not impecunious.

J.E.O.’s financial situation is significantly more precarious than that of J.C.O. and she now is faced with a substantial debt and payments that will significantly erode the benefits of the child support. As a result, there will be no order for costs and each party will bear his/her own.

VIII. ORDER: The Order dated March 1, 2006 is varied to provide that: 1). The respondent’s overpayment of child support is fixed, on consent, in the amount of $33,464.00 (See Further Agreed Statement of Facts); 2). The respondent’s annual income for the purpose of determining child support for the period from May 2010 is determined, on consent, to be $102,897.00; 3). Beginning in February 2011, the respondent shall pay child support to the petitioner for the support of two children, namely B.O. (date of birth April […], 1991) and R.O. (date of birth October […], 1992); 4).

Payments in the monthly amount of $1,393.00 shall be made on the first day of each month beginning on March 1, 2011 and continuing on the first day of each month thereafter until further order of the court, and subject to paragraph 5 below; 5). The overpayment of child support shall be paid by the petitioner by way of monthly payments of $300.00 which the respondent shall be entitled to deduct from each month’s support payment beginning in March 2011 and continuing thereafter until the overpayment has been paid in full or until a subsequent order of the court provides for a different payment regime; 6).

Payments of child support shall be made to the Court of Queen’s Bench of New Brunswick, Family Division, Judicial District of Fredericton; 7). The conditions set out in paragraph 49 above, shall form part of this order. 8). The parties shall bear their own costs. DATED at Fredericton, New Brunswick this 21 st day of February, 2011. ______________________________ Anne D. Wooder, J.C.Q.B.