Wence v. Wence, 2015 BCSC 2616

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wence v. Wence, 2015 BCSC 2616 Date: 20151203 Docket: 32498 Registry: Kelowna Between: Lori Kathleen Wence Claimant And Dennis Konstance Wence Respondent Before: The Honourable Madam Justice Gray Oral Reasons for Judgment In Chambers Counsel for the Claimant: P.S. Henry The Respondent, Dennis K. Wence: In Person Place and Date of Hearing: Kelowna, B.C. November 30, 2015 and December 2, 2015 Place and Date of Judgment: Kelowna, B.C. December 3, 2015 [ 1 ] THE COURT: The parties are the divorced parents of Lee.

Lee is a young man who is 29 years old and in his seventh year of PhD studies in Chemistry. He hopes to finish his PhD degree in the spring of 2016, which is coming up. The respondent father and ex- husband, Mr. Wence, has applied for orders relating to child support for Lee. [ 2 ] There are three unusual features of Mr. Wence's applications. One is that Mr. Wence brought this application over six years after the claimant mother and ex-wife, now known as Ms. Marshall, last paid child support for Lee, which was in April 2009. Second, Mr. Wence is asking the Court to order Ms.

Marshall to pay child support for Lee for the period starting May 2009, which was when Lee finished his Bachelor's degree over six years ago, and continuing until he finishes his PhD. Third, Mr. Wence is asking for an order for the difference between the amount of child support Ms. Marshall paid Mr. Wence pursuant to Court order and the amount Mr. Wence says she should have paid for the period from September 2004 through to April 2009, being the period from about 11 years ago to over six years ago. [ 3 ] Ms. Marshall was represented by legal counsel, Mr. Henry. Mr. Wence represented himself at the hearing.

Both Mr. Henry and Mr. Wence were well-prepared and articulate and presented written argument and case authorities in support of their respective positions. [ 4 ] The hearing commenced on Monday, November 30, 2015, and continued on Wednesday, December 2, 2015. Usually, it is a disadvantage when the hearing does not proceed continuously. Here, however, it was an advantage, because Mr. Henry provided Mr. Wence on Monday with Mr. Henry's written submissions and, on Wednesday, Mr. Wence was able to provide reply submissions in writing. [ 5 ] The issues on this application are as follows: (

a) does the order of Master Young pronounced February 18, 2008 (“Master Young Order”), preclude Mr. Wence from making further applications for payment of child support; (

b) if not, is Lee a "child of the marriage" as defined in the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.); and (

c) if Lee is no longer a child of the marriage as defined in the Divorce Act , does this Court have jurisdiction to order Ms. Marshall to pay further child support in respect of any period when Lee was such a child of the marriage and, if so, what is the appropriate order. The question overall is, if the Court has jurisdiction to do so, should the Court make an order for retroactive and prospective child

support and s. 7 expenses for Lee? [ 6 ] I will begin by setting out the facts. [ 7 ] Mr. Wence is 61 years old. He describes himself as self-employed and as actively seeking employment to capitalize on his upgraded education. He deposed that he anticipates that he will not be able to retire for several years due to the extra debt load incurred for Lee's support. However, Mr. Wence's affidavits do not disclose his present source of income or the nature of the educational upgrade he says he took. [ 8 ] It appears he did that educational upgrade sometime after 2007. [ 9 ] Ms. Marshall is 57 years old.

She worked as a dental hygienist for about 31 years and retired in April 2010, about five-and-one- half years ago. [ 10 ] The parties were married in August 1979. Lee was born in September 1986. The parties separated in March 1995 when Lee was eight years old. Given Lee's young age when they separated, it is not surprising that the evidence is that the parties did not discuss what would be Lee's likely education and career path. [ 11 ] The parties signed a written separation agreement dated March 17, 1995 (“Separation Agreement”). Both parties were represented by lawyers.

The agreement was reached about two years before the Federal Child Support Guidelines were enacted, which was in 1997. The Separation Agreement provided, among other things, that Lee would reside equally with each parent on a

schedule to be agreed upon by the parents, and that the parents would have joint custody and guardianship of Lee. It also provided that neither party would pay the other child support for so long as Lee's primary residence was being shared between the parties. The Separation Agreement also provided that the parties would share equally any major expenses for Lee including his educational expenses.

The Separation Agreement does not provide any further clarification of which educational expenses it was referring to, and whether that would include post-secondary expenses, and whether it would include post-graduate education expenses. [ 12 ] The Separation Agreement also dealt with assets, and provided that Ms. Marshall would transfer her interest in the family home in Kelowna to Mr. Wence, and that Mr. Wence would transfer to Ms. Marshall all his interest in RRSPs in the amount of about $150,000. [ 13 ] The parties were divorced by order of February 28, 1997, almost 19 years ago.

The divorce order included a term that the parties by consent each released the other from any claims that either may then or in the future have to property, maintenance, and support. [ 14 ] Less than a year after the divorce order was made, on April 1, 1998, Master Bishop made an order that designated Mr. Wence's residence to be Lee's primary residence. This order also provided that Ms. Marshall would have access to Lee on one evening each week and one weekend day every two weeks, weekly telephone access, and some summer access.

Lee was about 11 years old at the time. [ 15 ] Almost two months later, on May 20, 1998, Master Bishop made a second order. It provided that Ms. Marshall would pay Mr. Wence child support for Lee of $460 per month commencing May 1, 1998, and continuing until further order. [ 16 ] Lee was about 12 years old in August 1999. Lee and Ms. Marshall have not seen each other since then, except possibly in passing, and Lee has not seen Ms. Marshall's extended family since then, either. [ 17 ] Ms. Marshall sent some cards to Lee while he was in high school. [ 18 ] Mr.

Wence deposed that Lee planned his education in his last year of high school, which was years after the parties separated. [ 19 ] After Lee finished high school in the spring of 2004, he went to Okanagan College and then he went to the University of British Columbia-Okanagan Campus. [ 20 ] At some point, probably in 2005, Mr. Wence asked the Family Maintenance Enforcement Program, also called “FMEP”, to collect child support for Lee from Ms. Marshall. [ 21 ] In his responses, in an FMEP form dated September 11, 2007 entitled "Request for Information of Child's Circumstances," Mr.

Wence wrote: Please have Payor provide financial records for past 3 years as I believe she has not made payments commensurate with the schedule. [ 22 ] Mr. Wence did not at that time, being the fall of 2007, take any further steps to obtain Ms. Marshall's financial records. I do not think the evidence disclosed whether FMEP passed on to Ms. Marshall the request made by Mr. Wence for her financial records. [ 23 ] On January 22, 2008, Ms. Marshall applied for an order that her obligation to pay support for Lee should cease about three months later, on April 30, 2008.

At the time of the application, Lee was 21 years old and was in his fourth year of post-secondary education. [ 24 ] Ms. Marshall supported her application with an affidavit attaching information from Mr. Wence suggesting that Lee would graduate in April 2008. That would have followed four years of post-secondary studies. [ 25 ] In an affidavit filed in respect of that application, Lee stated that: My graduation date from the University of British Columbia Okanagan Bachelor of Science Program is April 2009.

I will be continuing on to graduate studies following completion of my undergraduate degree. [ 26 ] In an affidavit filed in respect of that application, Mr. Wence stated that:

I ask that the Plaintiff's application to cease support payments be dismissed and the Order continues until Lee finishes or withdraws from formal education. [ 27 ] Ms. Marshall's application was heard on February 18, 2008 by Master Young, before she became a judge of this Court. I was not provided with a copy of her reasons for judgment. [ 28 ] The Master Young Order provided that: … child support payable by [Ms. Marshall] will terminate for the child [Lee] … when [Lee] … graduates from University with a bachelor's degree. [ 29 ] Mr. Wence did not appeal the Master Young Order.

The order was settled by Master Young about eight months later, on October 8, 2008, following a numbers of letters being sent by Mr. Henry seeking to settle the order cooperatively. [ 30 ] By letter dated February 26, 2008, being within weeks of the pronouncement of the Master Young Order, addressed to Mr. Henry, Mr. Wence requested a review of the amount of Ms. Marshall's child support payments. He asked that Ms. Marshall provide income information for the preceding four years. [ 31 ] Mr. Henry's file includes a response by letter of the same date, February 26, 2008, to Mr. Wence. Mr.

Wence advised at the hearing that he did not have a record of having received this letter. This letter asked Mr. Wence to provide details of Lee's earnings for the previous three years, and says that Mr. Henry will have to find out whether Ms. Marshall would be retaining him concerning the matter. [ 32 ] In a letter dated two days later, February 28, 2008, from her counsel, Mr. Henry, to Mr. Wence, Ms. Marshall provided copies of pages from her income tax returns for the period 2004 through 2006 and a copy of her T4 form for 2007. The enclosed T4 slip provided an address for Ms.

Marshall which remains her address. The letter asked Mr. Wence to provide copies of his income tax returns for 2004 through 2006 and information about his 2007 income. [ 33 ] Mr. Wence did not take any further steps in 2009 to seek a review of the amount of Ms. Wence's child support payments. He did not provide Ms. Marshall with his financial information for the years 2004 through 2007, until November 2015.

There is some suggestion that this had something to do with the auditing of his income by tax authorities. [ 34 ] Lee finished his studies for his Bachelor's degree in the spring of 2009, following five years of university. His actual graduation date was June 5, 2009. Ms. Marshall paid Mr. Wence child support for Lee in the amount ordered by Master Bishop for the period ending April 30, 2009. [ 35 ] Lee moved from Mr. Wence's home in the Okanagan to Vancouver in the summer of 2009. Lee commenced his studies at the University of British Columbia-Vancouver Campus in the fall of 2009. [ 36 ] Mr.

Wence deposed that Lee earned an average of about $20,000 per year over the period from the fall of 2009 to the spring of 2015 as a teaching assistant. However, in his reply submissions, Mr. Wence said that Lee told him that, in fact, the earnings were only partly from working as a teaching assistant, and also included earnings from research assistance grants and scholarships. [ 37 ] Lee's income tax assessments were in evidence. They show that he earned income in every year from 2009 to 2014 from a low of about $12,500 in 2009 to a high of about $26,700 in 2011. [ 38 ] Mr.

Wence deposed that he has contributed $7,000 to $8,000 every year to Lee's expenses, but Mr. Wence did not provide documentation about those payments. The evidence did not particularize Lee's living expenses since April 2009 and did not provide details about scholarships or bursaries or grants he received or steps he has taken to pursue them. Mr. Wence advised that Lee has not taken out any student loans or other loans. [ 39 ] By letter dated June 11, 2009, to Mr. Henry, Mr.

Wence requested payment of child support for Lee for the period of about one month from April 30, 2009, to June 5, 2009, on the basis that Lee did not graduate until June 5, 2009. Ms. Marshall did not pay this requested further one-month payment. At the hearing before me, Ms. Marshall's position was that she relied on the evidence from Lee filed in 2008 that he would finish at the end of April 2009 as being a basis for her stopping payment of child support at the end of April 2009. [ 40 ] Ms. Marshall retired in April 2010. She does not have pension income. She lives on the income from her investments. [ 41 ] Mr.

Wence's Line 150 income for 2010 was assessed at about $23,500. His gross business income was reported as being about that same amount. Ms. Marshall's Line 150 income for 2010 was about $34,000. [ 42 ] For 2011, Mr. Wence's Line 150 income was assessed at almost $20,000. His gross business income was reported as about $44,000. Ms. Marshall's Line 150 income for 2011 was about $23,500, consisting primarily of dividends, interest, and RRSP income. [ 43 ] In December 2011 and July 2012, Mr. Wence wrote Ms. Marshall demanding that she contribute about $17,000 to Lee's tuition expenses.

This appears to be the first time after the Master Young Order of February 2008 that Mr. Wence requested contributions to Lee's post-graduate expenses. At the time of these letters, Ms. Marshall had already retired and Lee was in the third year of his PhD program. Mr. Henry responded on Ms. Marshall's behalf by a letter dated July 20, 2012, declining to make any such payment. [ 44 ] Mr. Wence's Line 150 income for 2012 was assessed at about $21,000. His gross business income was reported as about $47,500. Ms.

Marshall's Line 150 income for 2012 was about $57,500, consisting primarily of dividends, interest, and RRSP income. [ 45 ] Mr. Wence's Line 150 income for 2013 was assessed at about $1,100. His gross business income was reported as almost

$18,000. Ms. Marshall's Line 150 income for 2013 was about $45,000, consisting primarily of dividends, interest, capital gains, and RRSP income. [ 46 ] Mr. Wence's Line 150 income for 2014 was assessed at almost $4,000. His gross business income was reported as about $21,000. Ms. Marshall's Line 150 income for 2014 was almost $44,000, consisting primarily of dividends, interest, capital gains, and RRSP income. [ 47 ] In January 2015, Mr. Wence wrote Mr. Henry asking if Ms. Marshall was maintaining her position that she was not obligated to contribute further to Lee's expenses. In February 2015, Mr.

Henry responded to the effect that Ms. Marshall did not agree to make further payments. [ 48 ] Mr. Wence filed this application on September 11, 2015, but he did not serve it on Ms. Marshall or Mr. Henry until November 3, 2015. Mr. Wence explained at the hearing that he was out of town until late October 2015 and he did not want to serve it until he was back in town and able to deal with anything that arose. [ 49 ] Mr.

Wence deposed that Lee decided not to take on teaching assistant work for the fall 2015 and spring 2016 semesters because the extra work would delay his completion of the lab work and his thesis by at least six months. [ 50 ] It was not until he brought this application that Mr. Wence pursued his claim that Ms. Marshall had not paid enough child support through the courts. He deposed that he did not pursue what he termed the "deficient" support amounts earlier "because of factors in my personal life," including attending school, working, assisting family members, and dealing with family matters. [ 51 ] Ms.

Marshall deposed that she lives frugally and does not own a motor vehicle or other form of transportation. She has remarried, but deposed that she supports herself financially and is not financially dependent on her husband. She did not describe her assets and Mr. Wence argued that in order for her to earn the income she reports, she probably has assets worth at least $800,000. [ 52 ] Mr. Wence did not describe his assets either. Ms. Marshall's evidence is that Mr. Wence owns the former matrimonial home which has an assessed value of about $800,000.

She says it is subject to a registered mortgage which was in the amount of $150,000 in May 1999, 16 years ago. Mr. Wence did not dispute any of that. [ 53 ] I now turn to discuss each issue. [ 54 ] First, does the Master Young Order pronounced February 18, 2008, preclude Mr. Wence from making further applications for payment of child support? [ 55 ] As stated, Master Young ordered that: … child support payable by [Ms. Marshall] will terminate for the child [Lee] … when [Lee] … graduates from University with a bachelor's degree. It says when child support will terminate.

I accept that the evidence before Master Young was that Lee would graduate in April 2009. [ 56 ] The Divorce Act provides at s. 17(1) as follows: A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses … Section 17(4) is as follows: Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [ 57 ] As set out in s. 17(1), the Court has the jurisdiction to vary an order retroactively. Therefore, the Master Young Order did not preclude Mr.

Wence from making further applications even for retroactive changes. [ 58 ] However, s. 17(4) provides that the Court can only make a variation order if there is a change in the circumstances as provided for in the applicable Guidelines. Mr. Wence does not rely on a change in circumstances as provided in the applicable Guidelines.

Instead, he is seeking an order that Lee remained a child of the marriage even after he finished his Bachelor's degree. [ 59 ] The Divorce Act defines "child of the marriage" in s. 2(1) as follows: "child of the marriage" means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, 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 their charge or to obtain the necessaries of life … [ 60 ] The definition is different depending on whether a person is under or over the age of majority. For a person under the age of majority, the question is whether they have withdrawn from the care of the parents. For a person over the age of majority, such as Lee, they can be a child of the marriage only if they continue to be under the charge of the parents, but they must also be "unable" to withdraw from their charge.

[61] A parent is always free to give the child a gift of support and education. What I have to decide is the legal obligation. The Courtwill only enforce a legal obligation to support a child. Whether an adult child who is over the age of majority and who is still attendingfull-time studies will be considered a child of the marriage under the Divorce Act requires an exploration of the entire circumstances. [62] I will say that, in general terms, it is common for parents to be required by law to support their adult children to obtainBachelor's degrees from university.

It is less common for parents to be required to support their adult children to obtain graduate leveldegrees. There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance.However, as the student's age increases and as the student's scholastic attainment increases, it becomes increasingly difficult to establishthat the student is a child of the marriage under the Divorce Act. That is discussed in the Court of Appeal decision, W.P.N. v.

B.J.N., 2005BCCA 7 at paras. 29-30. [63] The cases show that some facts which support an order that parents must support an adult child to obtain a graduate level degreeinclude facts such as: both parents have graduate level degrees themselves, the parents had agreed during the marriage to support thechildren in post-graduate education, and the parties having sufficient income to support the requirement that they pay for post-graduateeducation. [64] Where a parent is ordered to support an adult child to pursue post-graduate education, the Court will consider the expenses; thechild's contribution; the availability of assistance for the child, including student loans; and the parent's ability to pay. [65] Submissions by both Mr.

Henry and Mr. Wence referred to what Mr. Wence aptly termed the “Farden factors” for adetermination of whether a child is a child of the marriage under the Divorce Act. That is a reference to the decision of Master Joyce,before he became a judge of this Court, in Farden v. Farden, (B.C.S.C.). [66] The law regarding support of an adult child pursuing a second university degree was well summarized by Mr. Justice Jenkins inparas. 16 through 19 of Naylor v. Naylor, 2012 BCSC 1450. They set out the factors from Farden and some further factors, as follows: [16] In the decision of Beninger v.

Beninger, 2010 BCSC 1509 , Madam Justice Fenlon reviewed the current law andconcluded that the pursuit of a second degree, in and of itself, was not a bar to continuing to be a “child of the marriage”. Her review ofthe law in that case outlines the criteria to consider; and I can do no better than repeat her

summary at paras. 9-15: [9] There is no automatic rule that a child is no longer a child of the marriage once a first university degree is completed. As noted byMadam Justice Levine in Neufeld v. Neufeld, 2005 BCCA 7 , W.P.N. v. B.J.N. [2005] B.C.J. No. 12, 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.[emphasis in original] [10] A spouse may be ordered to pay for the support of a child of the marriage under s. 15.1(1) of the Divorce Act. The definition of achild of the marriage includes a child who: 2(1)(

b) is the age of majority or over and under [her parents’] charge but unable, by reason of illness, disability or other cause, towithdraw from [her parents’] charge or to obtain the necessaries of life; [11] While the pursuit of education qualifies as “other cause” for continuing dependence of a child over the age of majority, it is not onits own sufficient.

As the Court of Appeal noted in Neufeld at para. 18: In determining whether a child pursuing an education is unable to withdraw from her parents' charge or obtain the necessaries of life acourt must consider the surrounding circumstances. [12] The relevant factors to be considered in determining whether a child pursuing an education cannot withdraw from her parents’charge includes those listed by Master Joyce (as he then was) in Farden v. Farden, (BC SC), [1993] B.C.J.

No. 1315(S.C.): (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 collegebecause 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 arelationship from the parent from whom support is sought. [13] This list of factors is not exhaustive, and does not constitute a minimum set of criteria which must all be satisfied.

As stated inNeufeld at para. 22: “They are relevant factors to be considered, along with others that are relevant in the circumstances. Thedetermination is fact-specific.”

[14] In Neufeld, the court identified an additional factor: the ability of a parent to continue to support his child beyond a first degree: [27] The father cited in support of his argument Maurice v. Maurice, [1993] B.C.J. No. 1461 (S.C.)(QL), where the Court found thatdaughters aged 26 and 21, pursuing "achievable, realistic and legitimate" educational goals in second degrees were no longer entitled tochild support.

The judge in that case considered the age, educational levels and abilities of the children, and also the "age of therespondent, his income and the state of his health". [28] In this case, the evidence is that the father has sufficient income to support J.'s achievable, realistic and legitimate educationalgoals, and there is no evidence that anything about his age or health would limit his ability to assist her.

Nothing in the separationagreement precluded post-graduate education. [emphasis in original] [15] It is apparent from these factors that whether a child who is 19 years or older remains a “child of the marriage” cannot bedetermined simply by asking (as the language of s. 2(1) of the Divorce Act suggests), whether the child can support herself whileattending school. The test is much broader; it requires the court to determine whether an “adult” child should be entitled to continuedsupport from her parents given her particular academic, financial, and family circumstances. [17] In Neufeld v.

Neufeld, 2005 BCCA 7 [Neufeld], Madam Justice Levine discussed the significance of the studentexhausting student loans by stating that: [24] ... [T]he availability of student loans is "merely one factor among many to be considered". It is not necessary that the child exhaustevery source of funding. In this case, this father has the means to assist J. with her educational expenses. She is a diligent, exemplarystudent who has contributed to her educational expenses by qualifying for and receiving scholarships, bursaries and grants.

In fact, thefather claims that he was not required to contribute to the first two years of her undergraduate degree because she received scholarshipsand grants that exceeded her expenses. The chambers judge provided for scholarships, bursaries and grants to be deducted from herexpenses in determining the amounts payable by her parents. [25] J. will likely need further training after obtaining her M.D. which will limit her ability to repay loans on graduation.

She should notbe put in the position of having to incur large amounts of debt to achieve what is agreed to be a realistic, achievable educational goal. [18] Also on the issue of the need to exhaust student loans, Roscoe J.A. of the Nova Scotia Court of Appeal in Selig v. Smith, 2008NSCA 54 stated: [20] ... [T]here is no hard and fast rule that student loans should be the last resort. In other cases, for example, Everill v. Everill, 2005NSSF 8 , and Houston v. Houston, 2007 NSSC 277 , the child was expected to contribute the full amount of anyavailable student loans.

Each case depends on its own particular facts and although the trend seems to be leaning towards determiningthe parents' ability to contribute before resorting to student loans, it cannot be said that it is an error in principle or a palpable andoverriding error of fact in a case where the divorced parents' total income approximates $100,000 for a judge to assume that an adultchild will be expected to borrow to finance post secondary education. The higher the parents' income, the less the student should berequired to contribute. There is no exact right answer in these cases.

So long as the amount ordered is reasonable in the circumstances,this court should be slow to intervene. [19] In

summary, the criteria developed in Farden and expanded upon in Neufeld are to be considered in each case; however, each factordoes not need to be present before finding that an adult child is a “child of the marriage”: Beninger at para. 13. The court may alsoconsider additional factors as the circumstances of each case demand. [67] The evidence in this case shows that the Farden and related factors apply here as follows: 1. Lee is enrolled in a full-time course of studies. 2. Lee has not applied for student loans or other loans and has recently discontinued working as a teaching assistant. 3.

Lee has wanted to do his PhD since high school, which was after the parties separated. 4. Lee worked as a teaching assistant and research assistant over the first six years that he was working on his PhD. He stopped doingthat because he plans to devote his full time to his studies, including researching and writing his thesis. This should enable him to finishhis PhD sooner than if he continued it while doing part-time work. However, it is likely that Lee could obtain some part-time work. 5. Lee is 29 years old and has continued his studies consistently since leaving high school. 6.

Lee's academic performance is outstanding, as demonstrated by his acceptance into a PhD program without a Master's degree, and hiscontinuation in the PhD program. 7. There was no evidence about an RESP, so I conclude that Lee does not have access to a Registered Education Savings Plan. 8. Lee has not had contact with his mother for many years. The issue of what could be termed the “alienation” or the “estrangement”was discussed at length in the hearing and in the affidavits. Lee was a young boy of 12 years of age when he last had real contact with hismother.

He received some cards from her when he was in high school. Lee is now a 29-year-old man. Either Lee or his mother couldhave taken steps as adults to establish a relationship with each other, but neither one has done so. I consider this a neutral factor on theissue of whether Lee is a “child of the marriage” under the Divorce Act. The reason I consider it neutral is that Lee was so young whenthe estrangement began, but it has persisted even after Lee has become a grown man who is now almost 30 years old. 9. Ms.

Marshall is presently retired and earning income from her investments. [68] As in many cases, the factors here point in different directions.

[ 69 ] The factors which suggest that Lee is no longer a child of the marriage under the Divorce Act are that he is 29 years old, he has not exhausted his personal resources by applying for student loans or other loans and continuing to work part-time, his parents did not plan during the time they lived together for Lee to have a post-graduate education, Lee's mother is presently retired, and both of Lee's parents are presently earning less than $50,000 per year. [ 70 ] The factors which suggest that Lee is still a child of the marriage under the Divorce Act are that he is a full-time PhD student, he has continued his studies consistently since high school, and his academic performance is outstanding. [ 71 ] It is reasonable for Lee to continue his studies and complete his PhD.

The question of whether his mother is legally obligated to pay for him to do so is a different question. [ 72 ] As I have said, the Master Young Order provided that Ms. Marshall's obligation to pay child support terminated upon Lee's completion of a Bachelor's degree. [ 73 ] I do not have the benefit of a copy of Master Young's reasons for judgment. Mr.

Wence deposed that Master Young would not extend support beyond the period of Lee's undergraduate program because she said that his attending graduate school was not a definite event and it would be better if Lee's attending graduate school was a validated reality rather than a place to go because money was there to do it. Mr.

Wence deposed that Master Young's opinion was that requalifying Lee as a child of the marriage after the expiry of her order should be addressed if and when Lee enrolled in graduate studies. [ 74 ] Masters and judges often discuss issues during the course of a hearing while they are exploring the strength and weakness of various portions of the argument. Often those comments do not form part of the ultimate decision. Ms. Marshall's position before Master Young was that child support should terminate in April 2008. Mr.

Wence's position before Master Young was that it should terminate once Lee had finished graduate school. [ 75 ] The Master Young Order was that it would terminate on the completion of Lee's Bachelor's degree which was then expected in April of 2009. [ 76 ] In these circumstances, it is likely that Master Young weighed all the factors, including what are termed the Farden factors, and decided that, in all the circumstances, Lee would cease to be a child of the marriage under the Divorce Act upon completion of his Bachelor's degree. [ 77 ] What Mr.

Wence has quoted from Master Young are most likely comments raised during the course of argument, but not part of Master Young's decision. If Master Young had intended that Lee would remain a child of the marriage while pursuing post-graduate studies, she could have simply ordered that child support would continue until he finished his studies. If she had intended that Mr.

Wence would reapply if Lee were accepted into graduate school, she would likely have included a term that the parties had liberty to reapply if Lee were accepted into such studies. [ 78 ] As a result, I interpret the Master Young Order as a conclusion that, in all the circumstances, Lee would remain a child of the marriage only during his Bachelor's degree. On that

interpretation, Mr. Wence is essentially seeking to appeal Master Young's decision. This is not a case in which, for example, a child became unable to care for himself, such that a court might order that the child regained the status of child of the marriage under the Divorce Act . I am not on the Court of Appeal and I do not have the power to overturn Master Young's decision. On my

interpretation of her order, Lee has not been a child of the marriage since April 30, 2009, and I cannot order support for the period after April 30, 2009. [ 79 ] Even if I was wrong in that

interpretation of the Master Young Order, I would conclude that Lee is not presently a “child of the marriage” under the Divorce Act , and that he stopped being a “child of the marriage” under the Divorce Act upon completion of his Bachelor's degree. The most significant factors for that conclusion are Lee's age, which was 22 years of age on completion of his Bachelor's degree, and the mother's retirement and the amount of the mother's income. [ 80 ] This case differs, for example, from W.P.N. v. B.J.N . In that case, a father was ordered to assist his daughter to pursue a degree in medicine.

However, there, the father was a medical doctor, the father earned $170,000 per year, the parents had planned before their separation that the daughter would attend medical school, and the daughter would likely need further training after her MD degree which would limit her ability to repay loans on graduation. [ 81 ] I turn next to consider whether this Court has the ability to order Ms. Marshall to pay further child support in respect of any period when Lee was a child of the marriage. In this case, Mr. Wence is seeking that for the period from September 2004 to April 2009. [ 82 ] Mr.

Henry argued that the Court cannot make a retroactive order unless the child in question was a “child of the marriage” at the time of the application. Since I have determined that Lee has not been a “child of the marriage” since April 30, 2009, and Mr. Wence brought this application in September 2015, the effect would be that I do not have the ability as a judge to order Ms. Marshall to pay more child support in respect of the period before April 30, 2009. [ 83 ] Mr. Henry relied on a number of cases. The first is the Supreme Court of Canada decision, D.B.S. v.

S.R.G. , 2006 SCC 37 at paras. 85 to 89 : 5.2.3 Specific Issues Affecting Retroactive Child Support Awards [85] Having established that courts will generally have jurisdiction to make retroactive child support awards, it remains to discuss a couple of issues that could curtail the power of judges to make such awards in specific circumstances. 5.2.3.1 Status of the Child [86] A first circumstance is where an application is brought which concerns a child who is no longer eligible for support under the

relevant scheme. While the federal and provincial regimes differ in how they classify children — the Divorce Act refers to a “child of themarriage” while the Parentage and Maintenance Act refers to children under 18 years of age — a problem will always arise where aretroactive award is being sought for a person for whom the court does not have jurisdiction to order child support. [87] The Parentage and Maintenance Act is clear in this regard … [88] The situation under the Divorce Act is more complex.

Under s. 15.1(1), an order may be made that requires a parent to pay “for thesupport of any or all children of the marriage”. The term “child of the marriage” is defined in s. 2(1) as 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; The question then arises when the “material time” is for retroactive child support awards. If the “material time” is the time of theapplication, a retroactive child support award will only be available so long as the child in question is a “child of the marriage” when theapplication is made.

On the other hand, if the “material time” is the time to which the support order would correspond, a court would beable to make a retroactive award so long as the child in question was a “child of the marriage” when increased support should have beendue. [89] In their analysis of the Guidelines, J. D. Payne and M. A. Payne conclude that the “material time” is the time of the application:Child Support Guidelines in Canada (2004), at p. 44. I would agree.

While the determination of whether persons stand “in the place of… parent[s]” is to be examined with regard to a past time, i.e., the time when the family functioned as a unit, this is because a textual andpurposive analysis of the Divorce Act leads to this conclusion; but the same cannot be said about the “material time” for child supportapplications: see Chartier v. Chartier, (SCC), [1999] 1 S.C.R. 242, at paras. 33-37. An adult, i.e., one who is over theage of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made.

This istrue, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children ofthe marriage, not adults who used to have that status. [Underlining added.] [84] Next is Crepnjak v. Crepnjak, 2011 BCCA 177 at para. 29: [29] In order to grant an award of retroactive child support, the court must be satisfied that the child was a child of the marriage asdefined by the Divorce Act at “the material time”. The material time is when the application for child support is made: See D.B.S. v.S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231 at para. 89.

In most instances this is not an issue for a child who is under the age ofmajority at the time of the application. However, where an application seeks an award of retroactive support for an adult child, the courtmust first determine if the adult child meets the definition of a “child of the marriage” under the Divorce Act. … [Underlining added.] [85] This is a case where the parties were divorced, and the Divorce Act is the applicable legislation.

As a result, and as set out in thecases I have referred to, the Court cannot make an order for child support unless the child was a "child of the marriage" pursuant to theDivorce Act at the time of the application. Here, Lee had ceased to be a child of the marriage under the Divorce Act over six years beforeMr. Wence commenced his application. [86] Even if the Court had the power to make a child support order now to deal with the period from 11 to six years ago, I would notorder Ms. Marshall to pay more for the previous child support. She paid support for Lee as required by the orders of Master Bishop andYoung.

A year after Lee finished his Bachelor's degree, she retired. [87] Mr. Wence did not pursue Ms. Marshall through the Court for a determination of whether she should pay more child supportuntil after Lee ceased to be a child of the marriage. Importantly, he did not do so until about five years after Ms. Marshall retired. [88] Ms. Marshall was entitled to organize her financial affairs on the basis that she had complied with all court orders regardingchild support for Lee.

Had an application been brought before she retired, and had she been ordered to pay more for Lee's support, shemay have made other choices in her retirement planning. [89] Mr. Wence had personal reasons for not pursuing his claim for more child support until this fall. Ms. Marshall's life went on,apparently in ignorance of Mr. Wence's intention to pursue this question through the Court. [90] As set out in the Supreme Court of Canada decision of D.B.S. v. S.R.G., the Court must balance the payor's interest in certaintywith the need for fairness to the child and for flexibility.

Also, as set out in that case, as a general rule, if ordered, child support should beordered for no more than three years in the past. [91] In weighing Mr. Wence's argument that Lee deserved more support and Ms. Marshall's argument that she retired believing thatshe had fully satisfied her legal obligations to support Lee, Ms. Marshall's position must succeed. As a result, I must dismiss Mr. Wence'sapplication for further child support for Lee. [92] I certainly wish Lee all the best in his PhD program and I understand Mr.

Wence's pride and desire to support Lee, but it doesnot translate into a legal obligation on Ms. Marshall to contribute more money to Lee's education. [93] Those are my reasons.

[ 94 ] Is there anything else? [ 95 ] MR. HENRY: I do have an application for costs. [ 96 ] THE COURT: What are you seeking, Scale B costs? [ 97 ] MR. HENRY: Yes. [ 98 ] THE COURT: All right. Anything you want to say on that, Mr. Wence? [ 99 ] DENNIS WENCE: Madam, all I can say is that if this is fairness for a child, I am very saddened. It is a very bad, bad day. It is a sad day for all children. [ 100 ] THE COURT: Yes, I know you do not like my decision -- [ 101 ] DENNIS WENCE: No, I know that. [ 102 ] THE COURT: -- but I am asking if you have a position on a ruling for costs? [ 103 ] DENNIS WENCE: Okay.

I do not have money. They can chase me forever for it. That is fine. [ 104 ] THE COURT: Okay. [ 105 ] DENNIS WENCE: I am going to throw up every roadblock that I can to have them chase me, I guess. Fair is fair, you know. I do not want to do that. I am not that kind of -- I am not that kind of a man. [ 106 ] THE COURT: All right. Well, the normal rule in the court is that the party who wins is entitled to an order for costs -- [ 107 ] DENNIS WENCE: I understand. [ 108 ] THE COURT: -- payable by the party who loses. I do not see any reason to depart from that here. So Ms.

Marshall is entitled to an order for costs against Mr. Wence. [ 109 ] This case proceeded on Monday until about 12:30 p.m., then proceeded for an hour yesterday, 9:00 a.m. until 10:00 a.m., and then the parties had to come back for reasons for judgment, so the costs should be for a one-day hearing. [ 110 ] THE COURT: So she is entitled to her costs for that -- [ 111 ] MR. HENRY: Thank you very much. [ 112 ] THE COURT: -- at the usual scale. “Gray J.”