C.D.1 v. C.D.2 Date:, 2016 BCPC 314

Citation: C.D.1 v. C.D.2 Date: 20161004 2016 BCPC 314 File No: 18407 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.D.1 APPLICANT AND: C.D.2 RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: C.D.1 Counsel for the Respondent: G. Crampton Place of Hearing: Terrace , B.C.

Date of Hearing: September 15, 26, 2016 Date of Judgment: October 4, 2016 Issues [ 1 ] The applicant seeks continuing child support for the parties’ now adult child from the time of the child’s graduation from high school June 30 th , 2015 until she moved from her mother’s home on December 1 st , 2015. [ 2 ] The central issue is whether the child S.D.1 was a child under the definition in the Family Law Act during that period of time.

Background [ 3 ] After a long marriage, the parties separated in 2013. [ 4 ] There was one child of the union, S.D.1, born [omitted for publication]. [ 5 ] There was an interim consent order made on July 16 th , 2013 fixing child support by the father at $367.00 per month starting July 1 st , 2013. [ 6 ] There was a final consent order made on March 12, 2015 imputing an annual income to the father in the amount of $46,892 and fixing the child support at $428 per month commencing July 1 st , 2013 and continuing until February 1 st , 2015 as the child reached the age of majority later that February. [ 7 ] The order of March 12 th , 2015 included a term that the mother could apply for further maintenance for the child “if it appears that the child will not receive income assistance beginning on or before July 1 st , 2015. [ 8 ] The order of March 12 th , 2015 also included a term fixing the arrears of child support from July 1 st , 2013 until February 28 th , 2015 at $1,220.00.

Testimony [ 9 ] The applicant called one witness, S.D.1. She testified that she had turned 19 years of age on [omitted for publication]. [ 10 ] She testified that she had graduated high school at the end of June 2015. [ 11 ] She testified that she had given birth to twins born [omitted for publication].

The children were born three months prematurely and have serious health issues. [ 12 ] She testified that she and her daughters continued to live with the applicant after she finished high school until she and the twins moved out at the end of November 2015. [ 13 ] Through this witness a number of exhibits were entered.

These were: (Exhibit 1) peace bond in favour of the applicant and S.D.1 against the Respondent which terminated July 29 th , 2014; (Exhibit 2) photograph of S.D.1’s daughter S.D.2 at BC Children’s hospital on June 24 th , 2015 after surgery; (Exhibit 3) letter from Doctor Lyayi dated September 19 th , 2016 stating that S.D.1 was required to stay at home with S.D.2 for three months of post-operative care after surgery on June 23 rd , 2015; (Exhibit 4) letter from Doctor Steinbok dated June 22 nd , 2015 confirming S.D.2 required surgery the following day; (Exhibit 5) letter from Northwest Community College dated September 12, 2016 confirming that full time for the CCP program is 10 hours a week and that S.D.1 was “full time from September 8 until October 28, 2015 and part-time thereafter until December 1 st , 2015; (Exhibit 6) unsigned application for Income Assistance by S.D.1 from March 2 nd , 2015; (Exhibit 7) correspondence to S.D.1 from the Vancouver Community College dated August 30 th , 2016 concerning a Dental Assistant program; (Exhibit 8) series of deposit slips for maintenance paid by the Respondent to S.D.1 in June 2015 through September 2015; (Exhibit 9) extract from Northwest Community College website indicating that the budget for an eight month full time program might be $5,760 based on ten courses. [ 14 ] S.D.1 testified that her plan was to have a part-time job in July and August 2015 but that she could not as it was necessary for her to provide 24/7 care for S.D.2 after the surgery as per Exhibit 3. [ 15 ] She testified that she dropped out of Biology class in October as both the twins had illnesses that caused her to miss classes and

fall behind. [16] She testified that her application for Income Assistance was denied over the phone as she had too much money in a Tax FreeSaving Account.

In cross-examination she stated that she had approximately $19,000 in the TFSA in March 2015 [17] In cross-examination she also testified that in the spring of 2015 she had approximately $42,000 in a Registered EducationalSaving Plan and that as per the financial statement she filed in this matter she had income in 2015 from the Child Tax Credit of $13,341. [18] In cross-examination she testified that since the expiration of the peace bond she has had approximately 12 phone conversationswith her father. Some were initiated by her and some by him.

She added that he had also seen her a number of times on the street andhad come over to talk with her. [19] In cross-examination she testified that she was willing to communicate with her father and he could visit the grandchildren if hewas willing to shower and put on fresh clothes as the twin E.D. has chronic respiratory problems and as he is a heavy smoker thelingering smoke could sicken the child. [20] In cross-examination, she stated that she understood that her father had suffered a head injury and as a result has mood-swings. [21] In cross-examination, she testified that she had drawn down the TFSA to approximately $2,000 and that it was not listed on herfiled financial statement because she didn’t know it was an asset.

The Law [22] Child is defined in s146 of the Family Law Act to “include a person who is 19 years of age or older and unable, because ofillness, disability or another reason to obtain the necessaries of like or withdraw from the charge of her parents or guardians.” [23] The onus is upon the applicant to establish that S.D.1 remained a child under that definition for the period at issue. [24] Factors that the court are to consider are laid out in Farden v. Farden (BC SC), [1993] B.C.J 1315.

Theseinclude: 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) in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationshipfrom the parent from whom support is sought.

The Farden decision has been followed by many courts including the B.C.C.A in Shaw v. Arndt 2016 BCCA 78. [25] As per Vetrici v. Vetrici 2015 BCCA 146 the RESP remains the property of the contributor and is not the property of thebeneficiary (S.D.1) until it is distributed to her. [26] As per Sherlock v. Sherlock (1998) (BC SC), 36 R.F.L. (4th) 301 (BCSC), the payor may be relieved ofpaying a portion of the child support if the child takes a break from post-secondary education, lives at home and works part-time. Thatcase was cited favourably in Hazama v. Hazama 2014 B.C.J. 902 (BCSC). [27] As per Bragg v.

Bragg [2000] N.J. 14 (Nfld UFC) pregnancy of the child which precluded her from working or attendingclasses was held to be “another reason” that she could not withdraw from her dependency. Child support was ordered for the period ofthe pregnancy and to terminate after the delivery of the child unless she then enrolled in post-secondary education. Analysis [28] The court will first consider the Farden factors. From September 2015 through November 2015, S.D.1 was enrolled in post-secondary education.

It is a live issue as to whether she was carrying a full-time class-load but the Community College itself said so inExhibit 5 although by other portions of that letter it would appear that S.D.1 had a lesser class-load. [29] As per Exhibit 6 S.D.1 did apply for Income Assistance. The application was rejected as she had too much money in her TFSA. [30] In cross-examination she stated that she did not receive any assistance from her First Nation as they only fund students with fullcourse loads.

That contradicts the Community College’s position stated immediately above. [31] However, from her income received in 2015 in the form of Child Tax Credits and her savings in her Tax Free Savings Account,it is clear that she could contribute to her own support.

[ 32 ] S.D.1 has a reasonable plan to become a Dental Assistant (Exhibit 7). [ 33 ] S.D.1 was unable to take employment in July and August 2015 and part-time employment thereafter because of the serious medical issues of her children. [ 34 ] S.D.1 at the time in question had just turned the age of majority. [ 35 ] S.D.1 has demonstrated some success in her chosen course of studies such as in mathematics but not in biology which arose from the time consumed in caring for her children’s illnesses. [ 36 ] From the RESP it is clear that the parents had plans made for the post-secondary education of S.D.1. [ 37 ] It was conceded that the difficulties in the relationship between S.D.1 and her father have not resulted in the termination of the relationship.

Decision [ 38 ] Considering all of the factors above, this court concludes that S.D.1 was unable to withdraw from the charge of her parents because of a combination of factors including the serious illness of her children. Accordingly she remained a child under the Family Law Act until she left her mother’s home at the end of November 2015. [ 39 ] However, as per the Sherlock decision she did have financial resources such as the Child Tax Credit and Tax Free Saving Account to contribute to her own maintenance during that time.

As well she had the advantage of living in her mother’s home during that period. [ 40 ] From the financial statements filed by the parties and S.D.1 there are clearly resources available to all three persons. The court imputed income to the respondent in the amount of $46,892.00 for 2015 and ordered child support in the amount of $428 per month. [ 41 ] As per the Sherlock decision, for the period from July 1 st , 2015 until November 30 th , 2015 this court will reduce the child support to be paid by the respondent by one third which is $143.

That reduces the child support for that period from $428 minus $143 leaving a balance of $285 per month. [ 42 ] Accordingly, this court awards child support from C.D.2 in the amount of $285 per month commencing July1st, 2015 until November 1 st , 2015 inclusive for a total of $285 times 5 months equalling $1,425.00. [ 43 ] On March 12 th of 2015 C.D.2 was ordered to pay $428 per month child support commencing March 1 st , 2015 until June 1 st , 2015 inclusive.

That was in addition to arrears fixed in the amount of $1,220.00 as of February 28 th , 2015. [ 44 ] S.D.1 acknowledged child support payments made by her father during 2015 (Exhibit 8). These were four payments of $428.00 and one payment of $435.50 for the period June 1 st , 2015 through September 30, 2015. Those payments total $2,147. [ 45 ] Aside from the $1,220 in arrears fixed in March 2015, C.D.2 is responsible for the following child support payments for the benefit of S.D.1. These are $428.00 for March 1 st , 2015 through June 30 th , 2015. That is $428.00 times 4 months totalling $1,712.00.

A payment for June at the rate of $428 is included as S.D.1 was still in high school that month. [ 46 ] From July 1 st 2015 through November 30 th 2015 he is responsible for $285 per month for 5 months totalling $1,425.00. The total child support for S.D.1 from March 1 st , 2015 through November 30 th , 2015 is $1,712.00 plus $1,425.00 totalling $3,137.00. [ 47 ] From the total in paragraph 46 above must be deducted the amounts C.D.2 paid during the period March 1 st 2015 through November 30 th 2015. These are the amounts mentioned in paragraph 43 above and total $2,147.00.

The arrears after the order of March 12 th , 2015 are $3,137.00 minus $2,147.00 equalling $990.00. Therefore, C.D.2 owes arrears of child support as follows: Arrears as fixed March 12 th , 2015 $1,220 Arrears March 1 to November 30, 2015 $ 990 Total arrears $2,210 Order [ 48 ] C.D.2 shall pay child support to C.D.1 for the benefit of S.D.1 in the amount of $2,210 by instalments of $482 each month commencing November 1 st , 2016 and on the first of each month thereafter until paid in full. __________________ W. F. M. Jackson Provincial Court Judge