C.A.O. v. P.J.O. Date:, 2017 BCPC 361

Citation: C.A.O. v. P.J.O. Date: 20171010 2017 BCPC 361 File No: 16475 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.A.O. APPLICANT AND: P.J.O. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: T. Hudson

Appearing on their own behalf: C.A.O. Place of Hearing: Smithers , B.C. Date of Hearing: August 17, 2017, October 3, 2017 Date of Judgment: October 10, 2017 Introduction [ 1 ] P.J.O. and C.A.O. are the parents of J.L.O., age 22 and D.C.J.O. age 19. P.J.O. and C.A.O. separated on February 6, 2012, when J.L.O. was 17 and D.C.J.O. was 15. After separation, J.L.O. and D.C.J.O. resided principally with C.A.O. and P.J.O. paid her child support in accordance with the Federal Child Support Guidelines .

Both children pursued post-secondary education and training upon graduating from high school. [ 2 ] On January 26, 2017, P.J.O. filed an application for an order reducing or cancelling all arrears in child support on the basis that he had paid support to D.C.J.O. directly and that J.L.O. was no longer a child of the marriage. On June 15, 2017, Judge Jackson ordered, by consent, that D.C.J.O. is self-supporting and no longer a child of the marriage. He adjourned P.J.O.’s application for a ruling that J.L.O. is no longer a child of the marriage until the August 17, 2017 hearing date.

P.J.O.’s child support payments were suspended pending my decision. [ 3 ] P.J.O.’s application came before me for hearing on August 17, 2017 and on October 3, 2017. The principal issue before me is whether J.L.O. remains a child of the marriage. J.L.O. has been enrolled fulltime in post-secondary institutions since her graduation from high school in June 2013. In April 2017, J.L.O. graduated from UBC - Okanagan with a Bachelor of Human Kinetics.

In September 2017, she commenced a one-year post-graduate program at UBC - Okanagan to qualify her as an athletic therapist. [ 4 ] C.A.O. argues that J.L.O. is still dependent on her parents and entitled to child support. P.J.O. says although he is willing to assist J.L.O., he ought not be compelled to do so. The parties agree that if I find J.L.O. is still a child under the FLA , I should make an order requiring C.A.O. and P.J.O. pay their respective child support obligations to J.L.O. directly. Issues Issue # 1: Is J.L.O. a child for the purposes of the Family Law Act, SBC 2011, c 25 (“ FLA ”)?

Issue # 2: If J.L.O. is a child of the marriage, what are the parties’ respective child support obligations? History of the Proceedings [ 5 ] On October 31, 2012, the parties filed with the Smithers Court Registry, a written separation agreement (the “Separation Agreement”) pursuant to ss. 28 and 121 of the Family Relations Act .

The Separation Agreement, dated October 17, 2012, set out the parties’ respective rights, responsibilities and parenting time with J.L.O. and D.C.J.O.: see Exhibit 2. [ 6 ] On January 26, 2017, P.J.O. filed an application seeking an order that all arrears of child support be reduced or cancelled because P.J.O. had been paying support directly to D.C.J.O. while he pursues post-secondary training and he has paid extraordinary expenses in excess of his 50% obligation under the Separation Agreement.

P.J.O. also asserted J.L.O.’s child support should cease as she was no longer a child of the marriage. [ 7 ] P.J.O.’s January 26, 2017 application came before Judge Jackson on April 27, 2017, and adjourned to June 15, 2017. On June 15, 2017, Judge Jackson made a final order, by consent, which stated: a. D.C.J.O. is no longer a child of the marriage as he is self-supporting; b.

As at the date of this order it is agreed that there are child support arrears for two children owed of $3,000 by P.J.O. to C.A.O.; and, said arrears shall be repaid at the rate of $300 per month commencing July 1, 2017 and continuing on the 1 st day of each month thereafter until such arrears are paid in full; c. The payment of support for J.L.O. is suspended pending a hearing to be set late in August 2017 to determine whether or not J.L.O. remains a child of the marriage; d. The balance of the relief set for today’s date is adjourned to the trial coordinator to set a date for the hearing of those issues; and e.

The parties shall exchange their filed Form 4 Financial Statements with attachments at least 30 days prior to the date set for the continuation of this hearing regarding the status of J.L.O. as a child of the marriage. [ 8 ] On August 3, 2017, C.A.O. swore and filed her Form 4 Financial Statement. [ 9 ] On August 17, 2017, P.J.O. swore and filed his Form 4 Financial Statement. [ 10 ] The matter came for hearing before me on August 17, 2017, and continued on October 3, 2017, at which time I heard oral evidence from P.J.O., C.A.O. and J.L.O. I also received into evidence the following documents: a.

Financial Statement of P.J.O. sworn February 8, 2017 and filed February 9, 2017;

b. Financial Statement of P.J.O. sworn and filed August 17, 2017; c. Financial Statement of C.A.O. sworn and filed August 3, 2017; d. Exhibit 1: Statement of Earnings for P.J.O. for the pay period from July 7, 2017 to August 5, 2017; e. Exhibit 2: Pages 1 and 2 from P.J.O. and C.A.O.’s Separation agreement; f. Exhibit 3: Handwritten note from P.J.O. notifying C.A.O. that as of June 30, 2016, he would no longer be paying for J.L.O.; g. Exhibit 4: J.L.O.’s Academic History and transcripts from the College of New Caledonia (2014-2015) and from University ofBritish Columbia - Okanagan Campus (2015-2017); h.

Exhibit 5: J.L.O’s Projected Expenses for the Fall of 2017; and i. Exhibit 6: J.L.O.’s T1 General Income Tax returns for the 2013, 2014 and 2015 taxation years. [11] I also heard submissions from Mr. Hudson, counsel for P.J.O. and C.A.O. From Mr. Hudson, I also received the following caseauthorities: Oleksiewicz v. Oleksiewicz, 2017 BCSC 228 ; Ciardullo v. Ciardullo, ; Farden v. Farden, (BC SC); Darlington v. Darlington, (BC CA); W.P.N. v. B.J.N., 2005 BCCA 7 ; Kalenuik v.Kalenuik, 1009 B.C.J. No. 221. Background Facts [12] P.J.O. and C.A.O. were married on September 24, 1994.

They have two children of the marriage, J.L.O., born [omitted forpublication], and D.C.J.O. born [omitted for publication]. [13] P.J.O. and C.A.O. separated on February 6, 2012, when J.L.O. was 17 and D.C.J.O. was 15. [14] On October 17, 2012, P.J.O and C.A.O. entered into a Separation Agreement, which was subsequently filed with the Court onOctober 31, 2012. [15] The Separation Agreement was negotiated between the parties with the assistance of the Family Justice Centre and drafted byC.A.O.’s legal counsel.

With respect to J.L.O. and D.C.J.O., the Separation Agreement provided: a. the parties are joint guardians of J.L.O. and D.C.J.O.; b. J.L.O. and D.C.J.O.’s primary residence is with C.A.O.; c. P.J.O. is to have “reasonable and generous access” to J.L.O. and D.C.J.O. as agreed upon by the parties; d. P.J.O. had an annual guideline income of $58,865.52; e. P.J.O. pay C.A.O. child support for J.L.O. and D.C.J.O. in the amount of $894 per month until they are no longer a child under theFamily Relations Act; and f.

D.C.J.O.’s hockey and hockey travel are extraordinary expenses which the parties will share equally. [16] From February 6, 2012, J.L.O. and D.C.J.O. resided primarily with C.A.O. until they graduated from high school in June 2013and June 2016 respectively.

J.L.O.’s Circumstances [17] J.L.O. graduated from the Smithers Senior Secondary in June 2013, when she just turned 18 years old. [18] J.L.O. left home to attend College of New Caledonia (“CNC”) in Prince George B.C., from September 2013 to the end of thesummer term in 2015: see Exhibit 4. [19] After completing two years of study at CNC in Prince George, J.L.O. attended the University of British Columbia - Okanagancampus (“UBC - Okanagan”) for two years.

Her transcripts indicate she attended UBC - Okanagan for the 2015 Winter Term, 2016winter and summer terms and the 2017 winter term: see Exhibit 4. [20] J.L.O. attended UBC - Okanagan in the 2016 summer session in order to complete two human kinetics classes and twopsychology classes she had missed when transferring from CNC to UBC - Okanagan. [21] J.L.O. graduated from UBC - Okanagan with a Bachelor of Science in Human Kinesiology in April 2017, at the end of the 2017winter term. [22] Except when she attended summer classes, J.L.O. lived with C.A.O. for approximately three and one-half months each year,from mid-May until September.

C.A.O. paid for J.L.O.’s living expenses while J.L.O. resided with her. [23] J.L.O.’s goal is to become an athletic therapist. It is a goal she set a long time ago while attending the summer and wintergames. At the encouragement of her coach, J.L.O. began working with D.C.J.O. and his hockey team, which she enjoyed and decided topursue a career in athletic therapy.

[ 24 ] Although she has earned a Kinesiology degree, J.L.O. has returned to UBC Okanagan for the 2017 - 2018 academic years. J.L.O. intends to take a year of upgrading and then apply for athletic therapy school.

J.L.O. is enrolled in one course for which she seeks to improve her mark, as well as some additional courses which were not offered at UBC - Okanagan last year but are important prerequisites to J.L.O.’s admission into the athletic therapy program. [ 25 ] When asked why she was pursuing athletic therapy in addition to human kinetics, J.L.O. said it provides her with more education and more options. [ 26 ] J.L.O.’s transcripts indicate she had completed her first four years of studies with reasonable marks: see Exhibit 4. [ 27 ] J.L.O. financed the past four years of her education as follows: a. with monies she saved from various jobs; b. with bursaries she received in high school and while in CNC; c. a $25,000 grant contribution from the Metis Association; d. a $12,000 Registered Education Savings Plan P.J.O. and C.A.O. purchased for her when she was young; and e. financial assistance from her parents, both direct and indirect. [ 28 ] J.L.O. put into evidence her income tax returns showing she earned: (a) $13,160.43 in 2013; (b) $6,617.31 in 2014; and (c) $9,125.96 in 2015.

J.L.O. testified she earned $6,000 or so in 2016 and $3,500 in 2017 thus far. [ 29 ] J.L.O. has put into evidence her budget for next year: see Exhibit 6. J.L.O. estimates her expenses for the 2017-2018 Winter terms at UBC - Okanagan will total $22,924.60. These expenses are calculated for a nine month period from September 1, 2017 to May 31, 2018. The monthly expenses include $700 per month for rent, $130 per month for a cell phone, $528 per month to operate a vehicle, $440 for groceries and meals and $90 for entertainment.

J.L.O. has a one-time payment of $6,429.60 for tuition and $750 for books. [ 30 ] J.L.O. indicates she has savings of $3,500 from working this summer. She also expects to earn $500 per month for eight months while attending university. [ 31 ] J.L.O. has applied for a student loan but has not received confirmation she would receive the loan, or if she is granted the loan, the amount. I gather Student Aid BC determines how much an applicant receives based on various factors, including financial need and program eligibility.

As J.L.O. has earned her undergraduate degree, I understand Student Aid B.C. seeks confirmation the courses in which J.L.O. is enrolled in the 2017-2018 academic year are necessary for her educational goals. [ 32 ] In June 2016, P.J.O. sent C.A.O. notice that as of June 30, 2016, he would no longer pay child support for J.L.O., and in fact, did stop paying support.

At this time, J.L.O. was 21 years old and had not completed her academic program. [ 33 ] C.A.O. registered with Family Maintenance Enforcement program (“FMEP”) to compel P.J.O. to continue paying C.A.O. support for J.L.O. after June 2016. [ 34 ] P.J.O. paid support to C.A.O. for J.L.O. in the amount of $447 per month until June 15, 2017, when Judge Jackson suspended the payments pending the outcome of this hearing. [ 35 ] P.J.O.’s child support payments to C.A.O. prior to Judge Jackson’s order were $447 per month. This would be based on a Guideline income of $48,800.

D.C.J.O.’s circumstances [ 36 ] D.C.J.O. lived full-time with C.A.O. until the end of July 2016. In September, D.C.J.O. moved to Prince George and attended the College of New Caledonia where he was enrolled in an electrical apprenticeship program. When he returned to Smithers, D.C.J.O. resumed living with P.J.O. full-time. [ 37 ] Although D.C.J.O. was residing with him, P.J.O. was paying child support for D.C.J.O. to C.A.O.

C.A.O. says that she compensated P.J.O. for this anomaly by adjusting the arrears owing to her on Judge Jackson’s June 15, 2017 order. [ 38 ] When D.C.J.O. turned 19, C.A.O. advised FMEP that she no longer required maintenance for him. [ 39 ] On June 15, 2017, Judge Jackson ordered by consent that D.C.J.O. was no longer a child of the marriage. D.C.J.O. is currently working as a loader operator and when he has enough work hours, he intends to return to CNC to complete his electrical apprenticeship program. C.A.O.’s circumstances [ 40 ] C.A.O. is 45 years old and works for the Town of [omitted for publication].

Her financial statement filed August 3, 2017, indicates she earns a Guideline income of $64,351.89. Her annual expenses total $74,683.28. She values her assets at $85,724.07 and estimates her debts at $33,100. She assigns no value to her pension plan, although she says the municipality does offer a good pension plan. [ 41 ] C.A.O.’s annual expenses include $1,500 for J.L.O.’s cell phone and $700 for J.L.O.’s clothing. [ 42 ] C.A.O. received child support from P.J.O. from the time they separated in 2012. She stopped receiving child support for

D.C.J.O. when he turned 19 and was living with P.J.O. [ 43 ] P.J.O. paid C.A.O. the Guideline table amount of child support for J.L.O. until Judge Jackson’s June 15, 2017 order suspending the payments. P.J.O. had attempted to stop making these support payments as of June 30, 2016, however was prohibited from doing so by FMEP. [ 44 ] C.A.O. did not give J.L.O. the money she received from P.J.O. for J.L.O.’s support nor did she keep track of how she spent it. She believes she spent half of the support payments she received from P.J.O. on J.L.O.’s expenses.

These expenses included some clothing and a cell phone: see C.A.O.’s August 3, 2017 Financial Statement. [ 45 ] C.A.O. used the other half of the monies she received from P.J.O. for J.L.O.’s support to maintain her own home. C.A.O. was asked “ Of the money you received from P.J.O. for child support, how much additional did you give to J.L.O.?” She replied: Honestly, I didn’t directly give her cash or money. I paid her cell phone - I basically told her as long as she is in school, I will keep paying that. I paid the odd bill. I always bought groceries when they first went to school.

I bought them their cleaning supplies, toilet paper, paper towels and set them up. [ 46 ] C.A.O. believes it is important to maintain a home to which J.L.O. can return when she is not in school. [ 47 ] Other than paying their shared expenses during the summer months when J.L.O. was living with her, C.A.O. did not pay J.L.O.’s educational expenses when J.L.O. was in college and university. P.J.O.’s Circumstances [ 48 ] P.J.O. is 50 years old. He works seasonally for [omitted for publication].

He also takes on some small cash jobs cutting laws and snow removal from which he earns between $1,800 and $2,000 per year. [ 49 ] P.J.O.’s fortunes changed last year when he underwent hip surgery. He was unemployed from the middle of October 2016 to the end of May 2017. During this seven month period P.J.O. earned $27,924 from Employment Insurance. [ 50 ] P.J.O. had to live on a small inheritance he received from his parents while recovering from his surgery. [ 51 ] P.J.O.’s annual income, inclusive of employment income and Employment Insurance is $66,404. His expenses total $87,184.66.

He values his assets at $257,998.91, which includes $86,000 as a pension and $34,926 as savings. P.J.O. estimates his debts to equal $16,581.92. P.J.O.’s annual expenses include child related expenses of $762.92 and child support payments of $3,336. [ 52 ] P.J.O. said he had tried to stop paying child support for J.L.O. last year because she had received significant funds from the Metis Association.

P.J.O. gives J.L.O. money from time to time to help her out and a credit card to use in emergencies. [ 53 ] Although his work is hard on his body, P.J.O. anticipates that he will have to continue to work for many years to come. P.J.O. and J.L.O.’s relationship [ 54 ] P.J.O. and J.L.O. had a good relationship until last June when she read the notice he sent C.A.O. setting out his intention to discontinuing child support payments for J.L.O. as of June 30, 2017: see Exhibit 3. [ 55 ] P.J.O. now describes his relationship with J.L.O. as broken but fixable.

He feels J.L.O. is angry with him because he wanted to stop paying C.A.O. child support for her. P.J.O. also believes that C.A.O. is nurturing this animus. [ 56 ] J.L.O. said she used to have a really good relationship with her father. She does not think it bad now, but acknowledged it was “not awesome but that doesn’t mean it can’t get better.” [ 57 ] When asked if she expected P.J.O. to pay her money for her education, J.L.O. said, “ His help would be nice, yes.” Legal Framework [ 58 ]

Part 7 of the Family Law Act imposes a duty on each parent to provide support for the child and may be required to pay child support ( ss. 147(1) , 149(1) ).

Section 146 of the FLA defines child to include “ a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of his or her parents.” [ 59 ] The principles on which child support is based are: a. the parents of a child have a joint and ongoing obligation to support their children; b. child support belongs to the child; c. the amount of child support is based, not only on the parents’ earnings, but also on what the parent can earn - the latter of which is the imputing of income described in the Federal Child Support Guidelines (the “ Guidelines ”) See Carriere v.

Carriere , 2013 BCSC 235 , at para. 21 , citing Earle v. Earle , 1999 BCSC 283.

[60] Child support is determined by reference to the Guidelines and the Guidelines tables, subject to the parties’ agreement to adifferent amount and the court’s satisfaction that reasonable arrangements have been made for the support of the child.

Section 150 ofthe Family Law Act provides: a. in subsection 1, that child support is to be determined in accordance with the Guidelines (see the Family Law Act Regulation BC Reg42/103,

section 8); b. in subsection 2, that the court may order child support in an amount different from that mandated by the Guidelines if there is anexisting agreement for child support which provides reasonable arrangements for the support of the child; and c. in subsection 3, that, when considering whether the arrangements provided by the agreement are reasonable, the court must considerthe amount mandated by the Guidelines. [61] The provisions set out in the Guidelines are presumptive unless one of the specified exceptions applies.

Section 2 states: Child the age of majority or over

(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. [62] In considering issues of child support for children over the age of 19, the B.C. Court of Appeal, in W.P.N. v. B.J. N., para. 38adopted the following four step process Martinson J. formulated (at para. 6) in Wesemann v. Wesemann, (BC SC): 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 ("theusual Guidelines approach") is challenged. If that approach is not challenged, determine the amount payable based on theusual Guidelines approach. Step Three If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach isinappropriate. If not, the usual Guidelines amount applies.

Step Four If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs andother circumstances of the child and the financial ability of each spouse to contribute to the support of the child? Step One Issue #1: Is J.L.O. still a child for the purposes of the FLA? [63] The onus is on the party seeking child support to prove an adult child is unable to withdraw from parental support or provide thenecessaries of life from his or herself: Ciardullo v. Ciardullo, , paras. 16 and 17;Sijercic v. Kazic, 2016 BCSC 186, at para. 28; Darlington v.

Darlington, (BC CA), C.L.C. v. B.T.C., 2012 BCSC 736 atpara. 27; D.S. v. W.D.G., 2016 BCSC 1345 , at para. 40. [64] J.L.O. is a healthy, intelligent 22 year old woman who has finished an undergraduate degree. Mr. Hudson argues that nowJ.L.O. has completed a university degree, she is no longer a “child of the marriage.” [65] In W.P.N. v. B.J.N., Levine J.A. states at para. 30: [30] The jurisprudence supports the view that there is a wide range of factors to be considered in the determination of whether a child isa "child of the marriage" and that individual factors will be of varying importance in different cases.

All of the relevant factors must beconsidered. There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance. [66] The courts have long accepted that pursuing a post-secondary education necessary to equip a child with a career qualifies as“other cause” for a child’s continuing dependence on his parents. Mere attendance at an educational institution is not sufficient.

A courtmust consider the surrounding circumstances to determine whether a child is able to withdraw from his parent’s charge: Oleksiewicz v.Oleksiewicz, 2017 BCSC 228 at para. 27, citing Nordeen v. Nordeen, 2013 BCCA 178 and W.P.N. v. B.J.N., 2005BCCA 7 . [67] The salient question before me is whether J.L.O. is unable to withdraw from P.J.O. and C.A.O.’s charge. The oft-citedauthority on whether an adult student is legally entitled to receive child support is Farden v. Farden, (BC SC).

In Farden, Master Joyce, as he then was, identified a list of factors to guide the court’s determination as to whether an adult child

attending a post-secondary institution is entitled to receive child support.

I have considered below the “ Farden ” factors and their application to this case: (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 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.

Oleksiewicz , para. 27 . Application of the Farden factors: Factor 1: J.L.O. is enrolled in full-time studies at UBC - Okanagan in Kelowna. Factor 2: J.L.O. has applied for student loans and other financial assistance, both presently and in the past. At the time of hearing J.L.O. was still waiting to hear from Student Aid B.C., however, she is hopeful she will receive $11,000 in student loans. In any event, J.L.O. is not obligated to exhaust every source of funding looking to her parents for assistance: W.P.N. v. B.J.N. , at para. 24 . Factor 3: J.L.O. is pursuing a focused career in athletic therapy.

It is a reasonable and appropriate plan and she is not “simply going to college because there is nothing better to do. Factor 4: J.L.O. has the capacity to contribute to her own support through part-time employment and has done so consistently in the past. Recently, J.L.O. has been earning money in the summer from working as a nanny. She does not earn enough money to pay for her educational and living expenses. Factor 5: J.L.O. is 22 years old. Factor 6: For the most part J.L.O. has obtained good grades and has demonstrated success in her chosen course of studies.

Factor 7: P.J.O. and C.A.O. planned for J.L.O. to attend university during the marriage. They funded a $12,000 RESP for both their children. They did not contemplate a graduate degree. Factor 8: J.L.O.’s relationship with her father is tense as a result of his decision to discontinue paying child support last June 2016. It seems J.L.O. regarded this decision as a rejection of her. J.L.O.’s relationship with her father is distinguishable from the situation in Kalenuik v. Kalenuik or Oleksiewicz v. Oleksiewicz , where the child treated the payor parent with antipathy.

It was apparent to me that J.L.O.’s falling out with her father is painful to both of them. Still, I would not go so far as to say that J.L.O. has “unilaterally terminated her relationship with her father.” J.L.O. did not seem to know or appreciate that at least some, if not all, the financial assistance she received from her mother came from her father. Moreover, C.A.O. used one-half of J.L.O.’s child support to maintain her house even though J.L.O. only lived there for part of the summer.

I am confident as she matures, J.L.O. will realize her father has made a significant contribution to her education and will likely continue to do so. [ 68 ] Having considered all of the Farden factors in the context of this case, I find that J.L.O. still needs a little help and is not yet able to fully withdraw from her parents charge. For the time being, she is a child under the FLA . In reaching this conclusion I am mindful of the B.C. Court of Appeal’s recognition in Darlington at para. 17 of the “ notori​ous fact that post-secondary education fees are high and well paid employment for students is scarce.

Also it is well known that the pressures of a full course of studies limit the time available for part-time work. ” Steps Two and Three If J.L.O. is a child of the marriage, what are the parties’ respective child support obligations? How should the Guidelines be applied? [ 69 ] In determining the parties respective support obligations, the court must first consider whether it is appropriate to apply the Guidelines as if J.L.O. were under the age of majority. In W.P.N. v. B.J.

N., Levine J.A., states at paras. 39 - 42: [39] The second and third steps of the test as articulated by Martinson J. require that one of the parties challenge the application of the "usual Guidelines approach" to determining child support. There may be cases, however, where a party has not challenged the appropriateness of the application of s. 3(2)(a), but the court considers, on the facts of the particular case, that it is inappropriate. In my opinion, the absence of a challenge does not preclude consideration of s. 3(2)(

b) and in such a case, the court should determine child support under that provision.

[40] In the case of an adult student living away from home, Martinson J. provided the following rationale for finding that the"usual Guidelines approach" is inappropriate (at paras. 16-18): The usual Guidelines approach is based on certain factors that normally apply to a child under the age of majority. That is, the childresides with one or both parents. The child is generally not earning an income and is dependent on his or her parents.

The usual Guidelines approach is, in most cases, based on the understanding that, though only the income of the person paying is used tocalculate the amount payable, the other parent makes a significant contribution to the costs of that child's care because the child isresiding with him or her. The closer the circumstances of the child are to those upon which the usual Guidelines approach is based, the less likely it is that theusual Guidelines calculation will be inappropriate. The opposite is also true. Children over the age of majority may reside away fromhome and/or earn a significant income.

If a child is not residing at home, the nature of the contribution towards the child's expenses maybe quite different. [41] Whitley, Johnson and Wesemann have been applied by other Supreme Court judges in determining child support for students livingaway from home under s. 3(2) of the Guidelines. In Kembi v. Kembi, [1999] B.C.J. No. 165 (S.C.)(QL); McLean v. McLean, 2000BCSC 433 ; Sapergia v. Sapergia, 2001 BCSC 818 ; Karhoffer v. Karhoffer, 2002 BCSC 1570 ; and Watts v.Willie, 2004 BCSC 1136 , the Court held that the "usual Guidelines approach" provided under s. 3(2)(

a) was inappropriate anddetermined the amount of child support under s. 3(2)(

b) of the Guidelines, taking into account the needs and contributions of the studentand the ability of the parents to assist financially. A similar approach has been adopted in other provinces: see Power v.Hunt (2000), (NL SCTD), 196 Nfld. & P.E.I.R. 149, [2000] N.J. No. 315 (S.C.)(QL); Hagen v. Rankin (2002), 2002 SKCA 13 , 24 R.F.L. (5th) 38 (Sask.C.A.); Samson v. Samson (2003), (NL SCTD), 49 R.F.L. (5th)202 (Nfld.

S.C.(T.D.)). [42] In my opinion, in principle, support for an adult child who is entitled to child support because of his or her attendance at a post-secondary institution generally should be determined under s. 3(2)(b). The "table amount", as noted by Martinson J. in Wesemann,contemplates a contribution by the non-custodial parent to the expenses borne by the custodial parent in providing a home for the child. The fact that the "table amount" increases incrementally and not absolutely for additional children supports that

interpretation of theintention of the Guidelines. The "table amount" does not contemplate a child's contribution, which is an important factor in consideringthe amount of support a student requires. [70] I agree that s. 3(2)(

b) of the Guidelines is the appropriate

section to determine the amount of child support payable for J.L.O. Inreaching this conclusion I have considered: a. J.L.O. is a full-time university student who only resides in Smithers with her mother when not in university. In some years, J.L.O.has attended university in the winter, spring and summer sessions. As her budget shows, J.L.O. anticipates living in Kelowna next yearfor at least nine months; b. J.L.O. earns income from part-time work during the school year and full-time work during the summer. She has this incomeavailable to contribute to her own living and educational expenses; c.

In the past, J.L.O. has received significant funding from the Metis Association; and d. J.L.O. also receives financial assistance in the form of student loans and bursaries. Step Four What is the appropriate amount of support, having regard to the condition, means, needs and other circumstances of the child andthe financial ability of each spouse to contribute to the support of the child? J.L.O.’s present financial circumstances [71] J.L.O. has prepared a budget indicating she needs $22,924.60 for her living and educational expenses for the 2017-2018academic year.

She believes she can contribute $7,500 from her own employment income and hopes to receive $11,000 from StudentAid B.C., as she did last year. If she does receive the student loan, J.L.O. will have a $4,424.60 shortfall; if she does not receive thestudent loan, she will have a $15,424.60 shortfall. [72] C.A.O. proposes that she and P.J.O. each pay one-half of J.L.O.’s shortfall. This means that if J.L.O. receives an $11,000student loan, each parent would pay $2,212.30, or $245.92 per month for nine months.

If J.L.O. does not receive any external financialassistance, then each parent would pay her $7,712.30, or $856.92 per month for nine months. [73] C.A.O. has not indicated what she envisions happening after J.L.O. completes her 2017-2018 academic year. [74] P.J.O.’s position is that J.L.O. can trim a number of her anticipated expenses. Specifically, a. owning and operating a vehicle is extravagant for a full-time student in J.L.O.’s circumstances.

She could save significant monthlyexpenses if she were to take public transit; b. paying $133 per month for a cellular phone is also an extravagance that ought to be reduced; and c. J.L.O. could earn more money during the summer. In this regard, I note J.L.O.’s income has actually decreased each year despite herincreased age, experience and education.

[75] C.A.O. says J.L.O. needs a vehicle because the UBC - Okanagan campus is remote and public transport is too time-consuming. Moreover, P.J.O. agreed that J.L.O. should have a vehicle. [76] P.J.O. argues that whatever the shortfall, it is unfair to order him to pay half because for the past four years he has paid adisproportionate amount of J.L.O.’s post-secondary expenses. [77] P.J.O. and C.A.O.’s financial statements show they are middle-aged workers of modest means who have their own mortgagesand debts to pay. When P.J.O. is working, he and C.A.O. earn roughly similar incomes.

P.J.O. has had some health issues whichprevented him from working in the past and anticipates this situation will repeat itself in the future. Also, C.A.O. is younger and has amunicipal pension to which she can contribute. [78] Notwithstanding their modest means, I am confident that even in the absence of a court order, P.J.O. and C.A.O. would readilyprovide J.L.O. with the financial assistance she needs to complete her studies. J.L.O. is obviously a healthy, intelligent and hard-workingyoung lady committed to achieving her career goals.

P.J.O. and C.A.O. strike me as loving parents and despite the current tensions,J.L.O. and her father care deeply about one another. [79] P.J.O. would like to decide when and how much assistance he will give to J.L.O. with her on-going studies. After all, heprovides D.C.J.O. with a home even though D.C.J.O. is working and considered self-sufficient. [80] I have no doubt P.J.O. would exercise good faith and common sense in assisting J.L.O. absent a court order. Nevertheless,C.A.O. asks this court to make an order requiring the parties pay J.L.O. a specified amount rather leave it to their own discretion.

Specifically, P.J.O. and C.A.O. request that if I find J.L.O. is entitled to further child support, I order it paid to her directly. Section149(1) of the FLA empowers the court to order a parent or guardian pay child support to a designated person. In this case, the designatedperson is J.L.O. herself. [81] Section 150(1) of the FLA provides that if a court makes an order respecting child support, the amount of child support must bedetermined in accordance with the child support guidelines. Taking into consideration the factors set out in s. 3(2)(

b) of the Guidelines, Ifind a child support order is appropriate. I am going to assume J.L.O. will obtain a student loan in the amount of $11,000 as she has donein the past. She believes her shortfall will be $4,424.60. I believe J.L.O. could shave some of her expenses. Accordingly, I find J.L.O.entitled to receive child support from her parents in the total amount of $4,050, or $450 per month, for the nine month periodcommencing September 1, 2017, and ending May 31, 2018.

How much should each parent pay to J.L.O.? [82] Since she turned 19 on June 28, 2014, J.L.O.’s income, expenses and external financial assistance fluctuated. Although J.L.O.was not living with her mother while attending college and university, P.J.O. continued to pay child support to C.A.O. pursuant to theterms of their Separation Agreement. [83] Mr. Hudson submits that if this court finds J.L.O. is still a child under the FLA, then C.A.O. ought to pay all or most of theprospective court-ordered child support. Mr.

Hudson argues that since J.L.O. turned 19, P.J.O. continued to pay child support pursuantto the usual Guidelines approach when he ought to have been paying child support pursuant to s. 3(2)(b). Furthermore, P.J.O. paidC.A.O. child support for D.C.J.O. when he was an adult living with P.J.O.

Albeit tangentially, this argument engages the principlesapplicable to retroactive variation of an agreement to pay child support. [84] For the purpose of this analysis, I assume Judge Jackson’s June 15, 2017 consent order fixing the arrears of child support at $3,000 did not consider whether P.J.O. had overpaid child support since J.L.O.’s 19th birthday. [85] Section 148(3) of the FLA empowers the court may set aside all or part of an agreement respecting child support if it wouldmake a different order. [86] In G.J.L. v.

M.J.L., 2017 BCSC 688 , Justice Schultes found the court has authority under s. 148(3) of the FLA to varychild support payable under an agreement with retroactive effect. In this regard Justice Schultes adopts Judge Keyes’ decision in T.L.A.v. M.R., 2015 BCPC 151 , as did Judge J.P. MacCarthy in S.J.D. v. S.A.G., 2015 BCPC 370 . Similarly, Mr. JusticeWeatherill’s decision in Isacson v. Isacson, 2014 BCSC 2351 and Mr. Justice Fitch in Megson v. Megson, 2014 BCSC 2467 also made retroactive variations to child support payable under a separation agreement. Conversely, Mr. Justice Armstrong inR.M. v.

N.M., 2014 BCSC 1755 , concluded (at paras. 146, 150-152) that s. 148 of the FLA does not permit child supportagreements to be varied retroactively. Justice Schultes and Judge Keyes determined that because he concluded the claimant R.M. hadnot met the burden of justifying a variation pursuant to s. 148(3), Justice Armstrong’s additional conclusion that s. 148(3) could notoperate retroactively was obiter dicta. [87] The Supreme Court of Canada decision in D.B.S. v. S.R.G., 2006 SCC 37 is the governing authority on retroactivevariation of a child support.

The principles espoused in D.B.S. are applicable both under the Divorce Act and the FLA: N.M. v. G.M.,2015 BCSC 1732 , at para. 36. [88] Although D.B.S. dealt with applications by a recipient parent to retroactively increase support, the B.C. Court of Appeal hasruled the same principles apply to an application by a payor to reduce support. In G.M.W. v. D.P.W., 2014 BCCA 282, D.M. Smith J.A.,for the unanimous appellate court, summarized the relevant considerations when applying D.B.S. principles to applications toretroactively decrease child support orders by amending the payor’s guideline income.

She states at paras. 42 and 43: 42. The Court went on to identify four factors to be considered in determining the appropriateness of such an order: (

i) thecircumstances surrounding the delay in bringing the application; (ii) the payor parent’s conduct; (iii) the children’s circumstances; and(iv) any hardship caused by a retroactive child support order. 43. A finding of unreasonable delay will militate against a retroactive child support award (para. 104). Similarly, a payor parent’s

blameworthy conduct, defined as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriateamount of support” will also militate against a retroactive order (paras. 106-109). The circumstances of the children are also relevant inorder to ensure that they receive the benefit of a support order to which they are entitled, in a timely manner (paras. 110-113). Lastly,consideration of the hardship that may be occasioned by a retroactive order is not limited to the payor parent (paras. 114-116). Cited in by Justice Schultes in N.M. v. G.M., at para. 35.

The circumstances surrounding the delay in bringing the application [89] P.J.O. provided C.A.O. with notice of his intention to terminate his support payment for J.L.O. effective June 30, 2016. Prior tothis date, he had not indicated formally any intention to vary his child support payments for J.L.O. The payor parent’s conduct [90] There is nothing blameworthy about P.J.O.’s conduct until he unilaterally stopped paying child support for J.L.O. on June 30,2016.

His actions attracted the attention of FMEP and resulted in Judge Jackson’s June 15, 2016 consent order in which P.J.O. agreed topay C.A.O. $3,000 in arrears of child support at the rate of $300 per month. [91] On January 26, 2017, P.J.O. filed the application now before the court. C.A.O. says that she had offered P.J.O. the option ofpaying child support to J.L.O. directly, but he declined. She did not indicate how much she expected him to pay to J.L.O. or whether shewas willing to make a similar contribution.

The child's circumstances [92] In this case J.L.O.’s circumstances have changed significantly since the parties entered into the Separation Agreement. I findthe following circumstances relevant: a. on June 28, 2014, J.L.O. turned 19 years old. She is now 22; b. J.L.O. is a healthy, intelligent, highly motivated young adult; c. for the past four years J.L.O. has been attending post-secondary institutions in Prince George and Kelowna. Both her parents workand reside in Smithers; d.

J.L.O. returns to live with C.A.O. during the summer when she is not attending classes; e. each year J.L.O. earns some income, usually from relatively low-paid employment; f. despite her increased age, education and experience, J.L.O.’s employment income has incrementally decreased over the years; g. J.L.O. has received significant financial assistance in the form of RESPs, grants, bursaries and loans to fund her educational andliving expenses; h.

J.L.O. has completed a Bachelor of Human Kinetics degree and is now enrolled in additional courses to better position herself foradmission to an athletic therapy program; and i. J.L.O. has applied for a student loan with Student Aid B.C. and reasonably expects to receive $11,000 for the 2017-2018 academicyear. Any hardship caused by a retroactive child support order [93] As set out above, P.J.O. gave C.A.O. written notice of his intention to cease paying C.A.O. child support for J.L.O. in June2016 and filed his formal application on January 26, 2017. In D.B.S. v.

S.R.G., 2006 SCC 37 , the Supreme Court held that anorder adjusting child support obligations should commence as of the date of effective notice that a request is being made for a childsupport adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice isgiven. As indicated above, the principles espoused in D.B.S. to apply to applications to retroactively decrease child support as well:G.M.W. v. D.P.W.

Potential hardship to C.A.O. [94] C.A.O.’s Financial Statement shows she does not have a lot of money to spare after paying her fixed costs and monthlyexpenses. Nevertheless, C.A.O. did propose that if J.L.O. does not receive a student loan, the court order each parent pay J.L.O. $550per month to cover her shortfall. I am assuming C.A.O. would not have made such a proposal if she could not afford this sum. Potential hardship to P.J.O. [95] P.J.O. has not claimed paying child support would cause him hardship. He asked this court to order his child support for J.L.O.cease as of June 15, 2017, because: (

a) J.L.O. was no longer a child under the FLA; (

b) J.L.O. has alienated herself from him; and (c)C.A.O. kept for her own use half of the child support he gave her for J.L.O.; (

d) P.J.O. provides D.C.J.O. with a home without anycontribution from C.A.O.; and (

e) P.J.O. paid support to C.A.O. for D.C.J.O. even though D.C.J.O. was residing with him. [96] I have already found J.L.O. is still a child under the FLA and that she has not alienated herself from P.J.O. I do find, however,that P.J.O. did bear a disproportionate share of the joint parental obligation to provide J.L.O. with financial support while she wasattending college and university. I have reached this conclusion based on the following:

a. J.L.O. lived away from home at college or university the majority of the time so she shared living expenses with C.A.O. for less thanfour months per year; b. P.J.O.’s child support was not reduced to account for the fact that J.L.O. received $12,000 from her RESP, $25,000 from the MetisAssociation, employment income, bursaries and a student loan; c. C.A.O. kept half of the child support she received from P.J.O. to maintain her house; and d.

Although she earns $64,351.89, C.A.O. has not provided evidence as to her own monetary contribution towards J.L.O.’s support. [97] P.J.O. and C.A.O. have a joint and ongoing obligation to support J.L.O. As Justice Scarth commented in R.M.E. v. R.A.E., 2003BCSC 2 , “Child support is not spousal support in disguise.” It is J.L.O. who has the right to child support, not C.A.O. In myview, where a child is over the age of 19 years and living elsewhere, the recipient parent is obligated to account for child supportreceived from the payor parent.

Moreover, C.A.O. has an obligation independent of P.J.O. to provide J.L.O. with additional supportfrom her own income. I am not convinced that by simply permitting J.L.O. to live with her during the summer break, C.A.O. hasfulfilled that obligation. [98] P.J.O. has been paying C.A.O. child support for J.L.O. in the amount of $447 per month, for a total of $5,364 per year. C.A.O.only paid half this sum towards J.L.O.’s living expenses while J.L.O. was attending college or university.

In all the circumstances, I find that had P.J.O. filed an application to vary his child support payments for J.L.O. shortly after her 19th birthday, the court would havemade a different support order than one based on the usual Guideline approach. I am also satisfied the different order would haveresulted in a reduction of P.J.O.’s child support payments for J.L.O. [99] P.J.O. does not seek an order that C.A.O. reimburse him for any overpayment of child support. Rather, he seeks an orderrequiring C.A.O. pay the lion’s share of any prospective child support.

C.A.O., on the other hand, seeks an order reinstating J.L.O.’schild support from June 15, 2017, when Judge Jackson suspended the payments. [100] In my view it is appropriate to order C.A.O. to pay a disproportionate share of child support for J.L.O.’s 2017-2018 school year. Disposition [101] Based on the assumptions and findings set out above, this court orders: a. C.A.O. will pay J.L.O. $300 per month for child support for the academic year commencing September 1, 2017 and ending May 31,2018; b.

P.J.O. will pay J.L.O. $150 per month for child support for the academic year commencing September 1, 2017 and ending May 31,2018; c. P.J.O. is not required to pay child support for J.L.O. between June 15, 2017 and August 31, 2017; d. In the event that J.L.O. does not receive at least $11,000 from Student Aid B.C., either party may apply for a review of this order; e. This order is reviewable at the end of the 2017-2018 academic year at the request of either party; and f.

P.J.O. and C.A.O. will provide each other with proof they have made their respective child support payments to J.L.O. directly. ______________________________ J. T. Doulis Provincial Court Judge