L.D.M. v. T.R.S., 2018 BCPC 92

Citation: L.D.M. v. T.R.S. 2018 BCPC 92 Date: 20180418 File No: 16364 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.D.M. APPLICANT AND: T.R.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. Lindsay Wright Appearing on their own behalf: T.R.S.

Place of Hearing: Merritt , B.C. Date of Hearing: March 15, 2018 Date of Judgment: April 18, 2018 [ 1 ] This is an application by L.D.M. to vary child support and to review child support retroactive to December 1, 2016. In his reply, T.R.S. wanted an order ceasing all child support effective December 1, 2016 and to reduce or cancel his arrears. [ 2 ] The child in question is T.C.S., born [omitted for publication]. She is 19 years old and now an adult. [ 3 ] On separation, the parties entered into a separation agreement dated October 8, 2013. This separation agreement was filed in August 2017.

The separation agreement largely deals with the division of assets. However, the final two paragraphs of the separation agreement read as follows: 14. The care and custody of our daughter T.C.S. is agreed to be shared equally, we agree to communicate and share in all decision making in regards to her health and welfare in a fair and respectful manner. All extra reasonable expenses will be divided equally provided that they are discussed and agreed to by both parties. 15.

It is agreed that T.R.S. will pay L.D.M. child support of $287 monthly starting October 1 2013 based on the child support tables for his income less the amounts from the child support tables for L.D.M.’s income. This may be reviewed each year at the request of either person, in which case proof of the previous year’s income will be required by each party. Support shall continue until T.R.S. reaches the age of majority.

And will continue while she attends any post-secondary schooling. [ 4 ] L.D.M. brought an application on July 15, 2016 for child support based on the review provisions of the separation agreement and T.R.S.’s refusal to pay child support.

T.R.S. filed a reply on August 23, 2016 disagreeing with the application for child support, claiming that he was paid to date. [ 5 ] On September 9, 2016, he filed a further reply disagreeing with the child support and seeking to set aside the agreement dated October 8, 2013, but did not say what he was seeking to change about that settlement agreement. [ 6 ] On October 1, 2016, L.D.M. filed a reply to the counterclaim disagreeing with it because the child was not yet 19 and because property division could not be dealt with in Provincial Court. These were all set for first appearance on January 11, 2017.

At that time, everything was adjourned generally. [ 7 ] There is nothing in the court file to support T.R.S.’s position that the matters were already dealt with, as no conclusion was ever reached on those pleadings. Instead, L.D.M. filed the application that is now before the court and T.R.S. filed his reply soon after. [ 8 ] As in many cases, life unfolded differently than the parties expected, necessitating changes. In this case, such changes were somewhat contemplated by the separation agreement. [ 9 ] The first significant change occurred in July 2015 when T.C.S. no longer wished to live with her father.

She began to live with her mother full time. This necessitated the first change in the child support agreement. This was not contemplated by the parties at the time they made the child support agreement. They had anticipated that T.C.S. would reside equally with her parents. As a result of T.C.S. moving in with her mother, T.R.S. was required to, and appropriately, paid his full child support obligation to L.D.M. [ 10 ] T.C.S. moved out of her mother’s home on December 1, 2016. At the time, she was moving in with her boyfriend and wanted to experience living on her own.

She moved into a basement suite two doors down from her mother’s home. By this time, T.C.S. was 18 and had graduated high school. [ 11 ] Although T.C.S. was working at McDonald’s, she was only receiving 20 to 25 hours of work per pay period. Her mother had discussed with her the risks of moving out with this kind of income. T.C.S. used her savings to pay her first month’s rent and was earning $11.35 per hour after she moved out. Clearly, T.C.S. was unable to support herself, even with sharing expenses with her boyfriend. She was also missing work due to knee pain and physiotherapy.

Her mother paid her phone bill and was helping her to pay for groceries and clothing. [ 12 ] In contrast of the support that L.D.M. was providing to her daughter, T.R.S. sent a text to L.D.M. the day T.C.S. moved out saying that he no longer had an obligation to pay child support. In court, he expressed the belief that his daughter was living common law and therefore was no longer a child of the marriage.

This was despite their daughter still being 18 years old and her relationship not fulfilling any of the requirements that would constitute a common law marriage beyond cohabitating with an intimate partner. [ 13 ] T.C.S. lived away from her mother’s home until May 14, 2017. She told her mother that she missed home. She wanted to come home, save some money and then move to Kamloops to go to school the following January.

L.D.M. said she attempted to tell T.R.S. of this change in circumstances but she made an error in the e-mail address and he did not receive the notice. [ 14 ] However, it is clear that T.R.S. was aware T.C.S. had moved home. He asked her for the damage deposit to be returned to him. Evidently, he had loaned that to her when she rented her basement suite. Despite knowing that his daughter had returned to live with her mother and was still 18 years of age, he did not resume paying child support. However, T.R.S. was well aware that he did have to resume paying child support once the child returned home.

He chose not to. [ 15 ] T.C.S. since turned 19 and was still working part time at McDonald’s. Her 2017 T4 indicates that she earned $10,200 for the year. She saved for school, clothing and entertainment. T.C.S. continued to live with her mother until the third week of October. At that time, she began moving her possessions to Kamloops and her first day of rent was November 1, 2017. She moved in November to transition to the new environment before school started in January. Her intention was to enrol for school and to look for work.

[16] Rightly so, L.D.M. wanted T.C.S. to focus on enrolling and setting up her school. Her job search was not successful. She did notwant to return to McDonald’s where she had been quite unhappy. She did ultimately return to McDonald’s the week of the hearing. Sheis earning $11.35 per hour. The hours will fluctuate, with that week being 20 hours. [17] T.R.S. testified that T.C.S. told him she was moving back to her mother’s place in May 2017 to get her driver’s license and a carbefore following her boyfriend to Kamloops. She only intended to be at her mother’s for two to three months.

It ended up taking hermany more tries to complete the road test so that she could move out of her mother’s home in October. This was cast in the context thathe doubted his daughter intended to go to school. However, he conceded that she did mention school to him as well. He said hesupported the choice. However, he felt that she should have gone to the job at McDonald’s in Kamloops because she could have receiveda direct transfer. He concedes his daughter told him that the McDonald’s work place gave her anxiety and she wanted to look for anotherjob. [18] L.D.M. continued to support T.C.S. after the move.

She paid the rent, telephone bill and half of T.C.S.’s vehicle insurance. Shehas purchased clothing and groceries for her daughter. [19] T.C.S. is living in what can be described as communal housing. While her boyfriend resides with her in this home, so do anumber of other people. Recently, she has suffered a rent increase because some of the people have moved out. [20] T.R.S. claimed he was unaware that L.D.M. had been paying for any of these costs either in the first move or the second one.He also claimed that he has offered his daughter assistance from time to time.

However, he claimed that his daughter told him she did notneed help. T.R.S. sought to put some text messages into evidence which he had not shared with L.D.M.’s counsel before the day of thehearing. However, L.D.M. permitted T.R.S. to rely on those text messages. They reflect a tense relationship with T.C.S. where support isconcerned. In an undated text exchange, the conversation about her job search flows like this: T.R.S.: What does that mean T.C.S.: It means fine. What else would it mean T.R.S.: Are you working??? T.C.S.: Don’t need to. Not yet. I have been looking. Doing my own thing.

T.R.S.: What do you mean you don’t need to T.C.S.: I don’t need to. I’ve been getting by just fine. [21] There is nothing in this exchange that supports T.R.S.’s position that T.C.S. does not need assistance for schooling. It is a terseconversation about her efforts to find work. [22] In a text exchange on December 6, however, which is excerpted without the full exchange, T.C.S. says this: I don’t. She offered. But she’s just doing it alone. She just wants your help And I can’t go without help. It’s a cheaper school so it shouldn’t even be much of an issue. But I can’t pay for everything myself I’lladmit that.

Without help I don’t go. All mum wants is your help to help me… [23] At least since December 6, 2017, barely more than a month after T.C.S. has started paying rent in Kamloops, she is reaching outto her father for help. It is simply untrue for T.R.S. to say that his daughter has not asked for help. Clearly, T.R.S. does not wish to assistand he particularly does not wish to assist if it involves paying L.D.M. This was made abundantly clear by his inconsistent, waveringposition which he took throughout these proceedings. [24] T.C.S. also attempted to apply for a student loan.

The maximum amount she will receive from that resource, if she applies, is$1,500. T.C.S. should be applying to all sources regardless of how much or how little she might obtain from them. It is her obligation tocontribute as much as she can, within reason. In the end result, a student loan must still be repaid, no matter how big or small it may be. [25] T.R.S. also challenged T.C.S. on the number of classes she was taking. She started school in January in the Bachelor of Artsprogram. She has not yet declared her major. She is taking three courses. Initially, T.C.S. wanted to be a veterinarian.

Now she hasdecided she wishes to pursue psychology. As with many first year students, she struggled in the beginning. Her mother reported thatT.C.S. found the experience a lot different from high school. She was only receiving grades in the 68% to 70% range. However, hergrades have recently begun to improve. [26] L.D.M. paid for T.C.S.’s application, tuition and books. T.C.S. has not yet registered for her next semester, as she will betalking to an advisor first. T.C.S. has been using her savings to supplement groceries and other things that she needs. She has applied forgrants through Thompson Rivers University.

She and her mother will be looking at grants and bursaries offered outside of university. [27] T.R.S. believes that his daughter has withdrawn “from parental charge” and that she would be living in Kamloops whether shewent to school or not. However, he conceded that he was unaware of just how much L.D.M. had been paying for. [28] Counsel provided me with the following binding decisions: Farden v. Farden, (B.C.S.C.); Wesemann v.Wesemann, (B.C.S.C.); and W.P.N. v.

B.J.N., 2005 BCCA 7 , 2005 B.C.C.A. 7. [29] Farden was a decision of a Master of the Supreme Court dealing with a student who was “unable, by reason of his attendance ata post-secondary institution, to withdraw from [the mother’s] charge or to obtain the necessaries of life”. In the case before me, T.C.S.has never been able to withdraw from her mother’s support or to obtain the necessaries of life without her mother’s significant financialcontribution.

[ 30 ] Farden is a case that dealt with a son who had chosen to estrange himself from his father. The court considered the definition of a child of the marriage under the Divorce Act , 1985. The court also considered the ample authority that pursuit of higher education can be sufficient cause to show that the child has not withdrawn from a parent’s charge nor is able to obtain the necessaries of life.

The court set a test at page 7 which is applicable whether one is considering the Divorce Act or the Family Law Act : Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a “child of the marriage” requires examination of all of the circumstances.

It is not a conclusion which follows automatically from proof of attendance at the institution … In my view the relevant circumstances include: (1) whether the child is in fact enroled 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 because there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (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 a relationship from the parent from whom support is sought. [ 31 ] This test is much embraced by the courts including in the decision of Wesemann , supra .

That decision also said that not all factors have to be present in order to be successful. [ 32 ] In the case before me, T.C.S. is enrolled in a course of studies. She has not yet applied for a student loan but she and her mother are pursuing other avenues which may not result in the student loan debt at the conclusion of her education. T.C.S. has career plans which include becoming a psychologist. She has some ability to contribute to her own support through part-time employment. However, it is clear that her grades will suffer if she works too many hours.

She is only 19 years old, having just turned 19 in December 2017. While her academic performance is not strong, she is achieving in the 68% to 70% range based upon her last set of grades, with some improvement more recently. It is also clear from the separation agreement that the parents contemplated T.C.S. would obtain some form of post-secondary education. There is also no evidence that T.C.S. has terminated her relationship with her father. [ 33 ] Under the Family Law Act , a child is defined, with exceptions, as a person who is under 19 years of age. Those exceptions include the definition under

Part 7 respecting child and spousal support. The definition of “child” under that

part is: “child” includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians. [ 34 ]

Section 147 also provides: 147

(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child (

a) is a spouse, or (

b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable. [ 35 ] T.C.S. is not a spouse despite T.R.S.’s belief that she is living common law with her boyfriend. Nor has she voluntarily withdrawn from her parents’ charge given her plea for help and her heavy reliance upon her mother to support her while she goes to university. [ 36 ] Section 147(2) also provides: 147(2) If a child referred to in subsection (1) (

b) returns to his or her parents' or guardians' charge, their duty to provide support for the child resumes. [ 37 ] Returning to a parent or guardian charge is not necessarily linked to whether the child lives within the family home. Returning to their charge means returning to dependence upon them. In T.C.S.’s case, she has never managed to live without support from her mother. She has never withdrawn from her charge. She has never been in a position to provide all of her necessaries of life for herself. [ 38 ] Section 3(2) of the Child Support Guidelines provides for the determination of child support.

The Wesemann decision set out a four step procedure for determining support for children over the age of majority: Step One Decide whether the child is a “child of the marriage” as defined in the Divorce Act ? If s/he is not, that ends the matter. Step Two

Determine whether the approach of applying the Guidelines as if the child were under the age of majority (“the usual Guidelines approach”) is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach. Step Three If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the Guidelines amount applies.

Step Four If the usual Guidelines approach is inappropriate, decide what amount is 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? [ 39 ] In this case, I am satisfied that, applying the definition under the Family Law Act , T.C.S. was a child supported by her mother even in the period when she briefly lived with her boyfriend from December 2016 to May 2017.

After she turned 19, T.C.S. became a child over the age of majority who was unable to withdraw from the charge of her parents or obtain the necessaries of life without their help. [ 40 ] Under Step Two, the Guideline amount is very much challenged by T.R.S. His position of challenge is largely based upon his ignorance of the realities confronted by L.D.M. and T.C.S., but is a challenge all the same. Ironically, L.D.M. only seeks to rely upon the separation agreement which would obligate T.R.S. to only pay for child support to L.D.M. so long as T.C.S. goes to school.

L.D.M. is not seeking T.R.S. pay his proportionate share of the special or extraordinary expenses. It may well be considerably more over time than what L.D.M. is now seeking. [ 41 ] In Step Three, I am not satisfied that T.R.S. has proven that the usual Guideline approach is inappropriate for the period of time leading up to when T.C.S. commenced school in January 2018. After January 2018, matters become more complicated because T.C.S. has expressed a desire to remain in Kamloops over the summer months in her current housing with her boyfriend and other roommates.

Again, however, so long as T.C.S. intends to return to school in the fall, this will not withdraw her from her parent’s charge. The obligation to continue child support will continue. [ 42 ] With respect to Step Four, I must now determine how each of T.C.S.’s parents will support her in her continuing studies. If I am satisfied that the usual Guideline approach is appropriate, then it will be the usual Guideline approach.

Otherwise, I must determine how to apportion responsibility to each person. [ 43 ] One of the factors that does not make it appropriate for the usual Guideline approach is that T.C.S. intends to continue to reside in Kamloops once school has concluded. During the school year, it is not uncommon for students attending university to live away from the home. This is recognized by the court in consideration of the application of Step Three in Wesemann .

If a student prefers to remain in their housing, work to contribute toward their education, and register to return to school then child support ought to continue. [ 44 ] Where the Guideline approach is not appropriate, the court must consider what is appropriate having regard to “the condition, means, needs and other circumstances of the child and the financial ability of each [parent] to contribute to the support of the child” ( Wesemann , supra at paragraph 19 ). [ 45 ] Finally, in W.P.N. v. B.J.N. , supra , the Court of Appeal endorsed the test in Farden in reviewing what the appropriate support should be.

The court reviewed a number of decisions dealing with child support for adult children pursuing post-secondary education. At paragraph 37, the Court of Appeal quoted with approval from Johnson v. Johnson , [1998] B.C.J. No. 1080 (S.C.) (QL) : 37 In Johnson , Pitfield J. concluded (at para. 12) that computing child support by reference to the tables in the Guidelines is not appropriate for students who live at home or away from home depending on convenience, affordability and need.

He found that the cost of post-secondary education, including tuition and institutional expenses, room and board or equivalent expenses, books, travel and miscellaneous expenses reasonably attributable to or arising from the pursuit of that education, should be shared by the parents in proportion to their incomes computed with regard for the Guidelines , after taking into account the amount the student can reasonably contribute. Mr.

Justice Pitfield commented that s. 7 of the Guidelines , which provides for the determination and proportional sharing of "special or extraordinary expenses", including "expenses for post-secondary education", contemplated such an approach. He expressed the view that such an order could be made whether or not an order for basic child support in the "table amount" was made . (emphasis added) [ 46 ] The Court of Appeal continued with approval adopting the four step procedure set out by the court in Wesemann .

The court concluded that, where appropriate, child support could be ordered as well as a specific award for special or extraordinary expenses under s. 7 of the Guidelines . Such is the case where a separation agreement expressly deals with such expenses. In the case before me, the separation agreement only contemplates continued child support. It is silent with respect to the actual costs of post-secondary education. [ 47 ] I am satisfied that L.D.M. was entitled to child support for T.C.S. who continued to be an infant until December 2017.

This is despite leaving the family home when she was 18 years old to reside briefly with her boyfriend, albeit with the considerable support of her mother. I grant L.D.M.’s application to vary child support and to review child support retroactive to December 1, 2016. [ 48 ] While I am equally satisfied that it would be appropriate to award L.D.M. a contribution from T.R.S. for the proportionate costs of T.C.S.’s education, L.D.M. specifically asked the court to make a support order only. The separation agreement contemplates making a support order.

I am satisfied that such an order is appropriate effective January 1, 2018 until such time as T.C.S. no longer pursues her post-secondary education. To be clear, child support will continue over the summer months even if T.C.S. is not registered in school. This will allow her ample opportunity to take more hours of work to contribute more toward her education. [ 49 ] The next consideration is the amount of child support T.R.S. ought to pay. T.R.S.’s income in 2016 was $71,246. His Guideline child support obligation for one child for December 1, 2016 is $678.

[ 50 ] T.R.S.’s income in 2017 according to his T4 form is $73,433.86. His child support obligation for one child for 2017, commencing January 1, 2017 to December 1, 2017 is the sum of $700. Finally, for 2018, the child support obligation will continue at the rate set for 2017 until June 1, 2018. T.R.S. shall provide a copy of his income tax return and notice of assessment not later than May 31, 2018. His child support obligation shall be adjusted annually in accordance with his Line 150 income commencing June 1, 2018.

This shall continue for so long as T.C.S. is pursuing her post-secondary education subject to further order of the court. ______________________________ S.D. Frame Provincial Court Judge