Vandenberghe v Dittrick, 2024 ABKB 58

Court of King’s Bench of Alberta Citation: Vandenberghe v Dittrick, 2024 ABKB 58 Date: 20240130 Docket: 4801 146977 Registry: Calgary Between: Matthew Craig Vandenberghe Plaintiff/Respondent - and - Erin Marie Dittrick Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice P.R. Jeffrey _______________________________________________________ [ 1 ] Erin Dittrick (the “ Mother ”) applies for an order varying child support. She seeks an increase in ongoing

section 3 support, an increase to s. 3 support retroactive to January 1, 2021, (except for 4 months in 2022), a variation in the approach to s. 7 education expenses once their son exhausts his RESP money, and an order that the new regime would continue until the son completes his objective of a master’s degree in architecture. He has completed one term at university in a bachelor’s degree program so far. [ 2 ] Matthew Vandenberghe (the “ Father ”) opposes the entire application.

He says it should be dismissed because the son is no longer a child of the marriage as of June 30, 2022, when the then 18-year-old finished his time in high school, ending his entitlement to child support. In the alternative, the Father says the son was not a child of the marriage from July 1, 2022, to August 31, 2023.

[ 3 ] The Father cross-applies for return of the s. 3 child support he paid over those 14 months, for an order that if the Court revives ongoing s. 3 child support it be at the Court ordered fixed rate of $500 per month, and for a direction that any such revived ongoing child support obligation “will automatically terminate when their son ceases to be a full-time student.” I. Background Facts [ 4 ] This dispute is about the parties’ son, Jaxon. He is the only child of the parties’ relationship, though he now has 6 stepsiblings.

Each parent has re-partnered and has 3 more children with that new partner. [ 5 ] Jaxon was born March 25, 2004. He turned 18 while in his final year of high school, on March 25, 2022. He completed his time in high school in June that year. [ 6 ] Today Jaxon is 19 years old and, except for September to mid-December 2022, has been in the primary residential care of the Mother since the parties divorced in August 2011. [ 7 ] From September to mid-December 2022, Jaxon lived away from the Mother’s home while he attended the University of Alberta, to play football with the University of Alberta Golden Bears.

He was offered a partial scholarship with the football team, provided that he graduated high school with an average of at least 80%. He graduated with an average of 79.4%, narrowly missing that prerequisite. [ 8 ] During his term at the U of A, Jaxon completed two of his three registered courses. He withdrew from the third part-way through the term. He ended his time at the U of A mid-December 2022 and returned to his Mother’s residence in Calgary. He immediately began working at Sobeys and continued there until May 2023.

It appears he left that job to begin a new one May 21, 2023, as a landscaper with Blue Grass, earning $20.00 per hour. Jaxon worked at Blue Grass for two months, earning $6,095 during that time. No information was provided as to his income while working at Sobeys. I infer his total monthly compensation at Sobeys was less than his pay at Blue Grass, either from a lower rate of pay or less hours of work or both.

He made the move, presumably for greater pay, though I acknowledge it is possible that as a football player whose every expense is covered, his motivation for the employment change may have been a desire for more physical labour in his work not more pay. He ceased all remunerative work July 21, went on vacation with his family on his Mother’s side, and then in September 2023 commenced studies at Mount Royal University while remaining resident in his Mother’s home. [ 9 ] Over that time Jaxon continued his involvement in organized football, now with the Calgary Colts.

He attended Bow Valley College for 3 high school upgrading courses, between January and April 2023. [ 10 ] From September 2023 to December 2023, Jaxon attended Mount Royal University, registered in 3 courses within the Business Administration degree program. His Mother says he intends to make up for the lighter course load in non-football terms and at the time of filing the application materials (mid-way through his first term) his grades in his classes were all As. [ 11 ] In January 2023 the Father ceased paying his s. 3 child support.

The parties exchanged messages about that, agreeing to both retain counsel for advice on the issue. The Father made up the missed January child support payment before the month ended and has continued since then paying regularly at the rate in their existing Court Order (the “ Order ” or the “ 2011 Order ”). [ 12 ] In 2011 a member of this Court granted the parties’ divorce and set some terms on corollary relief. The Order said decision making would be joint and that Jaxon’s primary residence was left to the parties to determine.

Ever since then Jaxon has been primarily resident in his Mother’s home, with his Father able to have Jaxon in his home every other weekend as well as some communicating between. [ 13 ] The Order ascribed to the Mother an income of $75,000 per year and to the Father of $75,050 per year. The Order required that the Father pay the Mother $500 “on the first day of each month, commencing May 1, 2010, and continuing thereupon until the child is no longer a child of the marriage pursuant to the Divorce Act .”

Section 7 expenses were to be shared equally. The parties were excluded from the “Child Support Recalculation Program”. They were required to provide each other their latest financial information by June 30 each year. [ 14 ] Neither party sent to the other that information. Ever. The information they each now have resulted from their involvement in this dispute. [ 15 ] In March 2023 the Mother began formal legal process to have the amount of child support varied. She applied to Court for an order that the Father provide his financial information.

After receiving the information, the Mother filed this Application and in response the Father cross applied. [ 16 ] I find as facts that the Father’s incomes available for the payment of child support, for purposes of determining child support payable pursuant to the Federal Child Support Guidelines (SOR/97-175 ) (the “ Guidelines ”) were: 2020 $147,954 2021 159,046 2022 203,022 2023 141,636 [ 17 ] The Mother’s application concluded different amounts for some of the years, but more information is now available for those years than when she filed her application.

The amounts I just stated are based upon the evidence of actual income. In Alberta, the fair

determination of income for support purposes requires, whenever it is available, the person’s actual or current income: Lavergne v Lavergne , 2007 ABCA 16 . [ 18 ] The Father indicated, though it is not in the evidence before the Court, that the much higher number for his 2022 income is not all employment income, because it contains a single large capital gain on the sale of some real property, as well as some investment income.

The law treats all such funds as available for child support, so I have not excluded any portion of the $203,022 from the amounts available as child support in 2022. [ 19 ] The Mother’s 2022 income for Guidelines purposes was $359,031. She said during the hearing, also not in the evidence, that of that total $175,000 of it is her base salary. The difference, she said, is her discretionary incentive compensation bonus award and her investment income. As with the Father, it all is regarded as monies available for child support.

I find the Mother’s income available for child support purposes was, in 2021, $231,064 and, in 2022, $359,031. [ 20 ] Both Mother and Father have the same employer, ATB Financial. [ 21 ] The evidence says nothing about whether the parties’ respective new partners are income earners and/or contribute to their household economy and estate in other ways.

Some comments about that were providing orally during the hearing, again not in sworn evidence, but those oral comments and the lawyers’ representations are not aligned and so I make no finding in that regard, excluding it from my considerations. [ 22 ] Likewise, I exclude all the information asserted as fact in the parties’ oral submissions and in their written submissions following the hearing, that are not contained in the parties’ sworn evidence their applications rely on and that they sent to me to consider.

As two of the more extreme examples of representations of fact of things not in the evidence before the Court, in their written Reply arguments, the Mother supplied budgets of her monthly expenses and of Jaxon’s monthly expenses and the Father asserted that “Jaxon has been able to … go on 5 weeklong vacations to Australia and New Zealand, receive a paid trip to Mexico for graduation…” plus offered counsel’s personal opinion on how competitive it is to be admitted into masters level programs in architecture. II. Child Support Generally [ 23 ] Jaxon’s biological parents were married, then divorced.

Therefore, his support is determined under the f ederal Child Support Guidelines (the “ Guidelines ”) ( SOR/97-175 ) pursuant to the federal Divorce Act (R.S.C., 1985, c. 3 (2nd Supp .)), not under provincial law as the Father invited. [ 24 ] Those Guidelines are to be interpreted and applied purposively. Sub-

section 26.1(2) of the Divorce Act states: The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. [ 25 ]

Section 1 of the Guidelines adds: The objectives of these Guidelines are (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (

b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. [ 26 ] Child support is the right of the child. Jaxon is entitled to financial support from both parents commensurate with their respective incomes. III. Conclusions in this Case 1.

There have been material changes in circumstances since the Order [ 27 ] Section 17(4) of the Divorce Act says: 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. [ 28 ] Therefore, both parties were to first satisfy me of such a change in circumstances.

Neither mentioned it. [ 29 ] Even if that statutory requirement did not exist, unless either the parties agree on the variation requested or I am satisfied that circumstances have changed materially since the creation of the order to be varied, I have no jurisdiction to vary an order of another judge of this Court. Here the parties do not agree on a variation, so I must be persuaded there is a material change in circumstances relevant to the proposed variation before I have any jurisdiction to vary the Order of a colleague.

[30] The test of whether there has been a material change in circumstances is whether there are new circumstances that, had theyexisted at the time of the making of the 2011 Order I am asked to vary, a different order may have resulted. [31] This is a low bar to meet on matters of child support; income changes are readily acknowledged to meet the test. Perhaps thatis why neither party even mentioned this necessary threshold issue – to them it was obvious. It is a mandatory preliminary considerationfor the Court and so counsel should address it. Here the payor’s income has roughly doubled since the 2011 Order.

If he had that incomein 2011, the Order would most definitely have been different. [32] Also, Jaxon turning 18, entering post-secondary education programs, demonstrating income earning capability, demonstratingthe ability to make a university football team and then a team in the Canadian Junior Football League, are all pertinent changes incircumstances that together satisfy the initial test. 2. Jaxon is presently a “child of the marriage” [33] The term “child of the marriage” has a specific meaning. It is defined in

section 2 of the Divorce Act. For a child in Albertawho is 18 years of age or over, to be a child of the marriage the child must be “unable by reason of illness, disability or other cause, towithdraw from their parents’ charge or to obtain the necessaries of life”. [34] In making this assessment, the Court should consider what are referred to as the “Farden Factors”, named after a case out ofBC of that name. Both parties referred to them and then addressed them, so I need not repeat them here.

But of those factors, the AlbertaCourt of Appeal in PT v RB, 2004 ABCA 244, at para 39 said: The evidence need not speak to each of these considerations in order for the adult child to remain a child of the marriage: see Darlingtonv. Darlington (1997), (BC CA), 99 B.C.A.C. 134. What is key is whether the child is dependent: Darlington at para.16; Wahl at para. 30, Tapson v. Tapson. Where the child has indicated total independence, for example, by cohabiting with someone, itmay be that the child is no longer considered a “child”: Vandervort v. Brettler (1989), (ON SC), 22 R.F.L. (3d) 160,(Ont.

H.C.), aff’d [1997] O.J. No. 1316 (Ont. C.A.). On the other hand, it is not necessary that the child resides with the parent as long asthe child has not removed him or herself from the parent’s charge: Bates v. Bates.[1] When a child is dependent is to be determined in allof the circumstances of the particular case: Jackson at 218.

The following are my considerations under the Farden Factors and otherrelevant considerations. [35] Post secondary education has been determined by the courts to satisfy the “other cause” requirement in s. 2 of the Divorce Act.In the most recent September to December 2023 university term, Jaxon was fully engaged in post-secondary education and football.During these pursuits Jaxon remained fully dependent upon his parents. He continued to reside in his Mother’s home and she providedfor virtually everything but his vehicle insurance and gas.

He was unable to withdraw from his parents’ charge. [36] In that fall term, he took 4 not 5 courses. His Mother says that he intends to make up the 5th course in one of the coming ‘non-football season’ terms. That course load will mean he will continue to be unable to withdraw from his parents’ charge. The Mother sayshe plans to continue this pattern in the academic years to come, continuing in football and yet still completing a full academic year’s loadwithin each 12-month period. [37] Jaxon is able to earn some income.

In the past he earned an unknown amount from Sobeys over Christmas ’22 and into someor all of the ensuing 5 months while carrying a lighter course load (3 high school upgrading courses). Then he earned $6095 from May21 to July 21, 2023, working as a landscaper for Blue Grass. I find Jaxon is able to work between 3 and 4 months each summer (only 3 ifhe is taking a course or two during compressed summer terms or if he begins his football team’s pre-season preparations early August, asI suspect but do not know from the evidence – this too was not provided).

If he were to work the maximum 4 summer months fully thenhe will earn in the range of $12,200. This is not enough to sustain him on his own for a full year. [38] Jaxon was said to not be eligible for student loans because of his parents’ high incomes. [39] Each month the parties each contributed RESP money to fund Jaxon’s eligible post-secondary expenses. They started wellbefore and continued long after the breakdown of their relationship.

From this I conclude they both for years have wanted Jaxon topursue higher education or vocational training and that he would have the funds available for it, without funding it all on his own. [40] Jaxon now has a specific career goal in mind: architecture. It is a goal, as I said during the hearing, that appears on its surfaceto suit Jaxon given the areas of his greater scholastic success to date.

Associated with that longer term goal, Jaxon’s intermediate goalappears to be to complete a bachelor’s degree. [41] In the most recent term, and perhaps related to having now identified his longer term goal, he has been demonstrating greateracademic success. His grades are markedly higher than the prior year, even though he again spent considerable time in football. Hisgrades available at the time the Mother filed her application were all in the “A” range. [42] Jaxon has been earning some income towards his needs, for example from employment during part of the summer and overthe Christmas break.

He secured the Christmas break employment very quickly after his university term ended, from which I infer he isnot merely riding his parents’ coattails. [43] Jaxon has not unilaterally terminated his relationship with his Father. Quite the opposite. He seeks out his Father. Theycommunicate approximately weekly. Jaxon expressed the hope that his Father attend at least one of his last games of his 2023 footballseason. I was told during the hearing, though again not in the evidence, that the Father in fact did that.

It was not disputed. [44] In sum, I find Jaxon unable to withdraw from his parents’ charge at present; he is unable to provide for himself thenecessaries of life. I find Jaxon to be a child of the marriage right now and, all other things being equal, will continue to be one goingforward.

3. Jaxon did not cease being a child of the marriage between July 2022 and August 2023 [ 45 ] In my view, Jaxon did not cease being a child of the marriage for the 14 months between the start of July 2022 and the end of August 2023 – the period for which the Father says he should now get back the child support he paid.

He was the age of majority throughout that time, but as I explain below, the evidence persuades me that during that time he was unable to withdraw from the charge of his parents or to obtain for himself some or all the necessaries of life. [ 46 ] The Farden Factors I discussed above largely apply also to the 14 months between July 2022 and August 2023, as do these following further considerations specific to that period. Jaxon had just finished high school the end of June 2022.

It is not reasonable to expect him to be fully providing for himself the very next day, on July 1. [ 47 ] Jaxon was just 18 years of age through most of that period, and then just 19. [ 48 ] From September 2022 to April 2023, Jaxon first pursued post-secondary studies, then some high school upgrading. Though he did not perform well academically in either term, he was nevertheless spent the time taking those courses. [ 49 ] In the fall term of 2022, he was enrolled in university courses and was part of the U of A Golden Bears football team.

Jaxon’s inability to succeed at both athletics and academics combined, demonstrate he was unable that term to withdraw from his parents’ charge. [ 50 ] In the winter term of early 2023 when trying to upgrade his high school grades, he did not have the added time demands from football, so perhaps he could have done a bit more to gain some experience in the workforce and pay more of his expenses out of his own pocket. [ 51 ] Maybe he did. Jaxon earned some income towards his needs, for example from employment over Christmas and during part of the following summer.

He worked throughout that period at Sobeys and his income over that period was not placed in evidence. So, I do not have that information.

In respect of the evidence I was given, none indicates the actual amount Jaxon earned over those months, so I am unable to infer either the degree to which, as the Mother maintains, he responsibly contributed to his own support or, as the Father implies, he leisurely frolicked away his hours while his parents sheltered him from the responsibilities of his nascent adult life. [ 52 ] Over that period Jaxon was a first-year post-secondary student who, not uncommonly, struggled in the transition to post- secondary education. Struggling with the transition does not disentitle him to his parents’ financial support.

Doing poorer than might be hoped at those studies is not proof he was not trying and does not alone disentitle him to his parents’ financial support: see for example, Ewing v Ewing , 2009 ABCA 227 at para 70 . The law acknowledges poor adjustments by many people in that transitional first year or so and does not apply the ‘child of the marriage’ test as rigidly to young adults transitioning to legal adulthood.

See also, for example, Gamache v Gamache , 1999 ABQB 313 at para 3 , [2] where the Court said: […] a parent has an obligation to assist the parent on whom the child is dependent through a reasonable transition period. What is a reasonable transition period is a question to be determined on the facts of each case.

In all the cases, the emphasis is placed on the inability of the child to support him or herself. [ 53 ] The football involvement prevented Jaxon from withdrawing from his parents’ charge in that first term and, in the second term, maybe he could have been busier when he had no football preoccupying his time, but as I said I just don’t know. The evidentiary record is thin. [ 54 ] The Father implies that it is not fair that he may have to continue to pay because the Mother sheltered and spoiled Jaxon.

Maybe, as his Father theorizes, Jaxon has had it too easy; far too much has been just given him not earned his Father believes. The evidence does not prove that on balance, but if it is true, both parents bear responsibility for it since they share joint decision making under the 2011 Order and both have opportunity to speak into his life from a parental perspective. [ 55 ] In any event, if it is true that he has been spoiled, it just proves Jaxon was unable to withdraw from his parents’ charge for the 14-month period in question.

By having it too cushy, if he did, he subsequently lacked the maturity, work habits and drive, to pay his own way and withdraw from his parents’ charge. [ 56 ] Jaxon’s activities and experiences over the 14 months at issue demonstrate amply that he was unable to obtain for himself the necessaries of life. It is not for me to assess if it might have been otherwise had he been raised differently, or if he ought to have been able to obtain those for himself. The fact is he was not able to. 4.

Determining ongoing child support for Jaxon by refence to the Guidelines Tables is inappropriate [ 57 ] Jaxon is over the age of majority. The Guidelines provide at section 3(2) :

(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.

[58] The Mother applied for a variation in the amount the Father must pay based on the approach in s. 3(2)(a), the amount on theGuidelines Tables (the “Tables”) indicated for the Father’s current province of residence and income. The Mother further says the Fatherhas not proven that approach is not appropriate. [59] The Father says that if Jaxon is still a child of the marriage, that child support should be $500.00 per month as required by the2011 Order. Failing that, if it is to be re-set, then doing so based on the approach in s. 3(2)(

a) is inappropriate. It should be determinedbased on the approach in s. 3(2)(b). He does not say what that resulting amount of child support should be after following the approach ins. 3(2)(b). [60] With respect to the 2011 Ordered amount, $500.00 per month, it no longer applies given my first conclusion above that therehas been a material change in circumstances.

Even if there had not been a material change in circumstances, I do not agree that the 2011Order fixed his child support obligation at $500 per month throughout the time until Jaxon ceases to be a child of the marriage. [61] The Father bases his view that the 2011 Order fixes all his child support at $500.00 per month on the wording in it thatexcluded the parties from the Child Support Recalculation Program. He says that is proof the Court ordered his child support will neverbe recalculated.

In making this argument the Father is confusing a decision about the method for recalculating child support with whetherchild support shall be recalculated. The 2011 Order says that it will not be recalculated by the helpful provincial government agency thatdoes it for parents whose child support determination is relatively straight forward and a simple arithmetic exercise after locating theright numbers in the Tables. But it does not say it will never be recalculated. The Child Support Recalculation Program does not purportto determine whose child support will be recalculated.

It accepts Court decisions and parties’ contractual agreements on that. [62] I do not interpret the 2011 Order as deciding that child support would remain forever at $500 per month. First, it does not saythat expressly, as it would need to do for such an anomalous approach. It does happen, but for it to happen it must be made clear whensuch rights are either given up by consent or are denied by Court decision. [63] Child support orders can be varied when warranted after changed circumstances.

Just as the law entitles a child of a marriageto receive more support when their parents’ incomes increase, so does the law entitle a payor to reduce the amount of support payablewhen they lose their job. Had the Father here lost his job, this 2011 Order would be open to variation so he would not have to keeppaying $500.00 per month regardless. [64] Second, the 2011 Order required financial disclosure every year. I infer from this that regular child support adjustments werecontemplated.

The annual income disclosure was not required for future adjustments to proportions of s 7 expenses, because the Ordersplits those 50/50, not proportionate to incomes. The only possible reason for the requirement to annually disclose incomes had to be forpossible future adjustments to s 3 child support. The Mother’s income was to be disclosed annually also because the 2011 Ordercontemplated Jaxon being equally with both parents or primarily with one or the other. That was a matter to be worked out.

Since allpossibilities remained open, both parents were required to disclose their income information. [65] Therefore the 2011 Order does not limit all child support to $500.00 per month.

As incomes adjust, the amount of childsupport may be varied. [66] The law presumes that any varied amount will be determined by resort to the Tables; their approach is appropriate untildemonstrated otherwise. [67] The Supreme Court of Canada said “inappropriate” means “unsuitable”: Francis v Baker, (SCC), [1999] 3SCR 250, at paras 34 – 41. [68] The law requires “clear and compelling evidence” to conclude the approach of using the Tables is inappropriate: Leis v Leis,2014 ABCA 36, at para 35. [69] The Alberta Court of Appeal explained this standard of “clear and compelling evidence” in Ewing, at paras 50 – 51, (in thecontext of

section 4(b)(ii) of the Guidelines, for payor incomes over $150,000 – which contains the same “inappropriate” threshold): […] The Supreme Court acknowledged in Francis that while the evidence must be clear and compelling, the entirety of the evidenceneed only be sufficient to “raise a concern” about whether the applicable Table amount is “inappropriate”. The court also recognized thedifficulty a payor spouse may have in collecting evidence that is in the hands of the other parent. The Ontario Court of Appeal stated this test another way in Tauber v. Tauber (2000), (ON CA), 48 O.R. (3d) 577, 187D.L.R. (4th) 1.

Speaking for the court, Rosenberg J.A. held, at para. 39, that a prima facie case may be sufficient to rebut thepresumption. This test is in line with the Supreme Court’s concept of “raising a concern,” and requires sufficient clear and compellingevidence to put the matter in issue. Once this threshold is met, however, the payee’s failure to adduce evidence on the subject might wellresult in an unfavorable finding – as a matter of common sense rather than evidentiary burden. [70] I must digress briefly to highlight an important distinction, between the “inappropriate” test in section 3(2)(

b) for a child ofthe marriage over the age of majority, and the “inappropriate” test in

section 4(b)(ii) where the payor’s income exceeds $150,000, as itwill factor into a later decision I describe below. Francis deals with the word “inappropriate” in the context of s. 4(b)(ii), not s 3(2)(b).Yet the word takes the same meaning (unsuitable) wherever it appears in the same statute or regulation (Francis, at para 37). However,that is where the similarity between the two tests ends. The test in

section 4(b)(ii) is whether “the amount” is unsuitable, whereas insection 3(2)(

b) the test is whether the “approach” is unsuitable – the approach of using the Tables to determine the amount. [71] This is an important distinction. To determine, for

section 4(b)(ii), if the Tables amount is inappropriate, it must first bedetermined what is the appropriate child support amount without resort to the Tables, and the Tables amount then gets compared to thatamount. At least, that is what the Supreme Court implied in Francis, at para 39 (emphasis added): […] s. 4(b)(ii) itself emphasizes the centrality of the actual situation of the children by expressly requiring that the “condition, means,

needs and other circumstances of the children” be considered in the assessment of an appropriate amount of support payable in respect of income over $150,000. [ 72 ] The court cannot assess whether the Tables amount is unsuitable unless it can compare it with a suitable amount determined some other way. In contrast, the approach used to derive the Tables can be assessed for suitability without first determining the result amount under some alternate approach. Put another way, the test in section 3(2)(

b) compares methods to determine suitability; the test in s 4(b)(ii) compares outcomes to determine suitability. [ 73 ] If pursuant to section 3(2)(

b) I consider the approach to the derivation of the Tables to be inappropriate for Jaxon’s child support, then and only then need I go further and determine what is the appropriate amount of Jaxon’s child support by a different approach - by considering the “condition, means, needs and other circumstances of the child and the financial ability of each spouse”. [ 74 ] Under

section 4(b)(ii), those same “condition, means, needs and other circumstances” considerations are undertaken in order to determine if the amount is inappropriate, not after the inappropriate determination is made.

By this, Parliament is signaling that the approach used to derive the Tables does not become less suitable just because a child reaches the age of majority, but that the approach used to derive the Tables is more likely to be inappropriate when payors’ incomes exceed $150,000 per year. [ 75 ] Further, it seems Parliament treatment intends the suitability determination to be made more efficiently in cases of a child over the age of majority, without the necessity of a full ‘condition, means, needs and other circumstances’ assessment in each and every case.

This more efficient approach, avoiding a full ‘condition, means, needs and other circumstances’ assessment every time a child of the marriage passes into the age of majority, is consistent with objective 1(

c) of the Guidelines , repeated above, “to improve the efficiency of the legal process”. [ 76 ] That said, for the following reasons, I find clear and compelling grounds “raising a concern” that the Tables approach is unsuitable in Jaxon’s case, and I am persuaded that that approach is in fact unsuitable. [ 77 ] In its “Formula for the Table of Amounts Contained in the Federal Child Support Guidelines : A Technical Report”, [3] the Department of Justice Canada explains two key assumptions to the approach to the formula used to create the Tables: The following model, and the mathematical equation derived from it, makes the technical assumption that the household of the paying parent has one member: the paying parent.

The receiving parent is also assumed to be single; the household of the receiving parent is made up of one parent and all the children of the marriage. Both parents earn income and pay taxes. [ 78 ] In this case, almost none of those assumptions apply in Jaxon’s case. The household of the paying parent is not a single person home, of just the payor alone. It has four other members in it, 3 of which I am told are children younger than Jaxon. The evidence does not disclose whether the Father’s new partner contributes financially from an earned income.

The household of the receiving parent has in it more than just the recipient and Jaxon; it has another adult and 3 other dependent minors, also under the age of Jaxon. Again, the evidence does not disclose whether the Mother’s new partner contributes financially to the aggregate household costs. [ 79 ] Guidelines objective 1(d), again, is “to ensure consistent treatment of spouses and children who are in similar circumstances”.

Using the Tables to determine the amount of Jaxon’s child support will undermine that objective, because his circumstances are not at all similar to the assumed circumstances of the children for whom the Tables have been designed. [ 80 ] The Department of Justice publication goes on to say: These technical assumptions … do not restrict the application of the tables to real life situations which may involve more complex family arrangements. [ 81 ] I find that the significant differences between the circumstances of these parents and the circumstances of the assumed generic parents for generating the Tables renders the Tables approach far less useful for these parties.

The Tables approach will generate amounts for these parties that fail to achieve Parliament’s objectives for child support, and therefore is unsuitable for these parties. [ 82 ] The Department of Justice also claims that the formula used to determine the child support awards is intended to equalize the living standards of the two parents’ households as long as the income of the paying, noncustodial parent is equal to the income of the receiving, custodial parent. Unusually, that was the situation in this case back in 2011, but it is far from the case now.

Now, while both parties’ incomes have grown, the payor’s Guidelines income is said to be less than half of the recipient’s income, and that is leaving aside the fact that in each of the two households there is a second adult who may or may not be also contributing financially to their respective household. [ 83 ] To accomplish the objective of equalizing living standards across the two households the Tables creators used in their formula an “Adult Equivalency Unit” that purports to result in an equivalency for different sized families (which still match the assumed payor living alone and recipient living alone with all the children of the marriage).

The creators used a 40/30 ratio to reflect the incremental costs for each additional child of the marriage in the recipient’s home. The operating assumption meant that, for example, a second child in a home does not double the child costs of the first. Of that approach the Fraser Institute observed: [4] It is important to underline that the 40/30 rule is a strictly theoretical statement about the relative costs of households of different sizes. It is an arbitrary choice and, one can argue, a choice better suited to lower income households. [ 84 ] In this case the households are not lower income households.

I recognize that this 40/30 ratio may not come into play in Jaxon’s case if the Tables amounts for one child of the marriage are used, even though there are 3 others in each home. It comes into play when more than one child of the marriage is support by the payor parent to the recipient parent. [ 85 ] I also note, as stated above, that Parliament considers the Tables amounts more likely to be unsuitable as payor incomes exceed $150,000. In this case, for two of the last three years the Father’s income for Guidelines purposes has exceeded $150,000. Indeed,

for one of those years it was quite significantly over. Jaxon’s needs and circumstances were unlikely to have increased commensuratelythat year. A child’s best interests may be that they do not get windfall level child support. [86] It oversimplifies the task to say, as the Mother argues, that whenever a child over the age of majority is in post-secondaryeducation and living at home, the Tables approach is not inappropriate.

In support of that argument the Mother relies on the decision inWesemann v Wesemann, (BC SC), which at para 31 said: 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 expensesmay be quite different. [87] The Mother says that Jaxon very much resembles a child whose support is determined under the Tables – he is living at homeand his Mother pays for all Jaxon’s expenses rather than his own income contributing significantly. She then says the Father has“provided no evidence showing the Guideline amount calculated under section 3(2)(

a) is unsuitable.” [88] The Mother also relies on the more recent BC decision in McClement v McClement, 2017 BCCA 416 for the sameproposition. But it actually supports the Father’s position. First, it repeats its earlier pronouncements that one aspect of the Wesemanndecision is wrong. The BC Court of Appeal said the BC Supreme Court in Wesemann is wrong when it said that if no one challenges theTables approach as inappropriate, then the Court must use the amount in the Tables. Therefore, it is not dispositive as the Mothersuggests that here the Father “provided no evidence” to show the 3(2)(

a) approach unsuitable.

In any event, in this case the Father didprovide evidence relevant to the Court’s assessment of the suitability of the approach in 3(2)(a). [89] More importantly for present purposes, second, the BC Court of Appeal in McClement said, at paras 10 and 11 respectively(emphasis added): … in principle, support for an adult child who is entitled to child support because of his or her attendance at a post-secondary institutiongenerally should be determined under s. 3(2)(b) … The “table amount” does not contemplate a child’s contribution, which is animportant factor in considering the amount of support a student requires.[5] … the fact that an adult child is attending a post-secondary institution while living at home should not in my view foreclose aconsideration of the approach under s. 3(2)(a).

In each case, the choice between applying s. 3(2)(

a) and s. 3(2)(

b) will be a discretionaryone that will be governed by the circumstances of that case.[6] [90] Jaxon does continue to reside in his Mother’s home. That seems to be the sole factor for Jaxon that is in common with theapproach to the Tables – that the child of the marriage resides more than 60% of the time in the home of the recipient parent. As theCourt in McClement says, that fact alone does not foreclose assessing the suitability of the 3(2)(

a) approach. Everything else about thiscase suggests the approach to generating the Tables amounts is designed for circumstances that are not present in Jaxon’s case.

Andfurther, McClement says that an adult child who is entitled to child support because of his or her attendance at a post-secondaryinstitution should generally have child support determined under the approach in s. 3(2)(b). [91] With respect, I frankly think that the above repeated statement in McClement goes too far (that “support for an adult child whois entitled to child support because of his or her attendance at a post-secondary institution generally should be determined under s. 3(2)(b)”). It sounds like a presumption in favour of 3(2)(

b) whenever the child over the age of majority is attending a post-secondaryinstitution. The law is clear that the presumption in all cases is the for an adult child who is entitled to child support because of his or herattendance at a post-secondary institution generally should be determined under s. 3(2)(

b) Tables approach. But attending a post-secondary institution can be a weightier consideration in assessing the possible inappropriateness of the 3(2)(

a) approach. I do find herethat it also militates in favour of concluding the Tables approach unsuitable for Jaxon. [92] Jaxon does contribute to his expenses and does have the capacity to do more.

This is not a ruling that he should do more, orthat he should forego other activities in his life so that he can contribute more, just that he is unlike most children under the age ofmajority in that he does now contribute to some of his expenses, in that he can contribute more to his expenses, and in that these elementsfurther reduce the suitability of the Tables approach. [93] For Jaxon, the Tables approach is unsuitable. 5. I have insufficient information to determine the appropriate amount of ongoingchild support following the s. 3(2)(

b) approach [94] For the reasons I provided above on the distinction between the “inappropriate” assessment in s 3(2)(

b) and the one in s 4(b), Ihave not determined the appropriate amount of ongoing child support for Jaxon in the course of finding the Tables approachinappropriate. Since I consider the approach to the Tables amounts to be inappropriate for Jaxon’s child support, I must next determinethe appropriate amount of Jaxon’s child support by considering the “condition, means, needs and other circumstances of the child andthe financial ability of each spouse” (the “Suitable Approach”). [95] In their applications for this hearing, each party listed all the evidence they rely on.

In aggregate those affidavits fail toprovide sufficient evidence from which I might now determine for them child support for Jaxon based upon the Suitable Approach. [96] The Court in Ewing, at para 5, said “the payee’s failure to adduce evidence on the subject might well result in an unfavorablefinding”. Here both parties want the level of support changed, but neither has supplied evidence relevant to the factors under the SuitableApproach that I am now to consider.

I am unable to just go with what one of the parties provided in the absence of evidence or challengefrom the other, because neither party has supplied the relevant information. The limited amount of information supplied me does not

permit an assessment under the Suitable Approach, let alone one that is fair, that is, one that has accorded both parties respond to the information of the other. [ 97 ] I know there is more information available. Both parties in their post-hearing written submissions improperly mentioned information that may well be relevant to the Suitable Approach (see para 22 above for examples). [ 98 ] The parties are required to arrange with my office a time to return to discuss their next steps and the timing of them in respect of this determination of ongoing child support. 6.

The amount of past child support should be varied retroactively [ 99 ] Whether child support should be varied retroactively is a discretionary decision. The court considers the unique circumstances of each case holistically, paying particular attention to (

i) whether there was a reasonable excuse for why support was not sought earlier, (ii) whether the payor engaged in “blameworthy conduct”, (iii) the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and (iv) whether the retroactive award might entail hardship for the payor parent: DBS v SRG; Laura Jean W v Tracy Alfred R; Henry v Henry; Hiemstra v Hiemstra , 2006 SCC 37 . [ 100 ] On whether the Mother has a reasonable excuse for not seeking a variation earlier, in DBS the Court stated, at para 101, “delay in seeking child support is not presumptively justifiable.” Where a recipient acquiesces to a lower support payment than set out in the child support guidelines (and is aware of the payor’s income), delay in making a claim will be a significant factor: Hojnik v.

Hojnik , 2010 ABCA 192 . [ 101 ] Here there is no evidence the Mother knew of the Father’s income, but they both worked at the same company throughout the relevant times and will have known each other’s career progression and the established salary ranges for their ex’s position within the company. I find the Mother knew at least directionally the salary range that the Father’s salary fell within.

Her conscious choice to not seek further child support is a significant factor and adds credence to both parties’ saying they chose to leave it alone for if it was raised so would be the Mother remaining primary residential parent of Jaxon. [ 102 ] Here the Mother said she did raise the matter of increased support with the Father but that each time he threatened to seek 50/50 parenting time if she did, so she never did until Jaxon was over 18 and he could decide for himself where he would reside.

The Father denies that the Mother ever raised the topic before January 2023, when for the first time in almost 12 years he stopped paying, believing that Jaxon was no longer a child of the marriage. As soon as the Mother balked at that and proposed both parties consult their lawyers, the Father made up the missed payment and resumed paying $500.00 monthly on time thereafter, while the parties consulted counsel.

The Mother then in March 2023 brought this application. [ 103 ] The Mother might have said, as many do, that the reason for her decade long silence about varying child support is that she did not want to engage in a long acrimonious court process, or she might have said, as many do, that she could not afford the cost of such a fight, or she might have said, as many do, that the cost of the fight would be greater than the incremental amount the child support would increase if she won. But she did not say any of those things.

She said she did not pursue a variation because she did not want to lose parenting time with Jaxon. This verifies the Father’s representation that both parties left things as they were on all points, that adjusting one would mean reopening the other. That is, adjusting child support would mean re-opening parenting time. [ 104 ] Fearing the threat of losing parenting time is not a reasonable excuse. It is placing her wishes (that Jaxon remain with her) over Jaxon’s interest (in greater support from his Father). Given the income of the Mother, it made no difference.

But in many homes it would mean significant help in covering the child’s expenses and maybe enabling the residential parent to not have to be away working as much. If the threat came to pass, parenting time would only be lost to the Mother if it was in Jaxon’s best interests that the Father’s parenting time increase. If the Mother retaining primary parenting time was in Jaxon’s best interests, the threats would come to nothing. If the Mother retaining parenting time was not in Jaxon’s best interests, then she should want it to change.

Maintaining a regime that is not in his best interests is not a reasonable excuse. Therefore, whether or not this assertion of the Father “threatening” to fight for 50/50 sharing of parenting time is true, it is of little consequence since it does not constitute a reasonable excuse for the Mother’s delay. It may have constituted blameworthy conduct on the Mother’s

part if Jaxon’s best interests meant equal sharing of parenting time or primary parenting with the Father. [ 105 ] The Mother says the Father engaged in blameworthy conduct by not disclosing his income increases. The 2011 Order required the Father to disclose his income information every year. The Father does not dispute that he did not comply with the 2011 Order in that regard, but says the Mother never asked for his disclosure and says the Mother similarly never provided her disclosure. This is not the law. She does not have to ask for it before he must provide it.

As this Court said in Roseberry v Roseberry , 2015 ABQB 75 , at paras 91- 92 : It is not reasonable for the recipient of child support to have to pay a lawyer to question the shareholder spouse, and to embark on other discovery processes, including the hiring of experts, in order to obtain the information that is in the possession or control of the shareholder spouse and is required to make a proper assessment of the income available for child support.

That approach utilizes financial resources that would otherwise be available for the children in the care of the recipient of child support and goes against the objectives of the Guidelines . Children do not benefit when the costs of obtaining proper disclosure exceed the benefit of the increased support. Recipients of child support are sometimes left in the position of choosing not to pursue complete disclosure rather than incurring significant costs for an uncertain outcome. See also Michel v.

Graydon , 2020 SCC 24 at para 33 , and Colucci v Colucci , 2021 SCC 24 at para 42 . [ 106 ] Apart from that obligation at law, the Father was ordered by the Court in the 2011 Order to disclose that information every year.

[ 107 ] Despite both of those requirements, the Mother only received the income information after applying to Court successfully. [ 108 ] Of course, the Mother was also required to disclose her similar information and she did not. In that respect, both parties were in breach of the Order, but it was the Father’s information that things turned on in this case, because of Jaxon residing primarily with the Mother.

The law is clear on the obligation to disclose, as is the 2011 Order, that the obligation on the payor Father to disclose is not conditional on the recipient first asking. [ 109 ] But I find the Father’s mistaken understanding of his obligations under the 2011 Order were genuinely held, maybe even reinforced by his counsel. The Father genuinely believed that the parties had a common understanding that child support would stay fixed at $500.00 and after high school it would only be payable for the 8 months a year academic term provided Jaxon was carrying full loads to abbreviate the duration of that time.

He appears to have formed the view that the 2011 Order about disclosure had been overtaken by the parties’ operating agreement just described and that disclosing his financial information would be a waste of time. [ 110 ] While failure to disclose income changes of any materiality is typically found to constitute blameworthy conduct, and intentional non-compliance with an order of a court is not only blameworthy conduct but can be found to be civil contempt, there is nothing here to demonstrate that the Father was giving priority to his interests while ignoring or overshadowing the interests of Jaxon concerning appropriate support.

That is what the Court in DBS described as blameworthy conduct in DBS , at paras. 105–106. I do not find that to have been the Father’s motivation. Both parties may have met that definition of blameworthy conduct, but it has not been proven on balance in either case. [ 111 ] The Father has not proven he will face any undue hardship if a retroactive order is made, no matter the approach used to calculate it.

Neither has either party suggested that Jaxon has ever been in need over the years for which retroactive support is sought – not because of the Father under-paying child support or as a result of any other circumstance in his life. The Mother ensured that Jaxon’s reasonable needs were always met; he suffered no hardship or deprivation.

Neither is there evidence the Mother incurred debt as a consequence of any under funding child support by the Father. [ 112 ] Looking at the whole of situation, I am persuaded that a variation in child support is warranted here. [ 113 ] When the Court’s discretion favours a retroactive variation, the Court must decide how far back in time to go. The law tries to achieve a fair balance between certainty and flexibility: DBS at para 122.

The Court there said: Awaiting legal action from the recipient parent errs too far on the side of the payor parent’s interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. [ 114 ] The Supreme Court concluded that a fair balance between those interests is to go back no more than to the date of “effective notice”, or three years, whichever is less, unless blameworthy conduct has been proven, in which case the reviewing court may go back further in time than the date of effective notice.

The Supreme Court summarized this in DBS as follows, at para 125: The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.

However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially.

A payor parent should not be permitted to profit from his/her wrongdoing. [ 115 ] Effective notice is given when the recipient provides some notice of his or her desire to review and adjust child support. Although effective notice can be as little as broaching the topic in conversation, formal notice is something more, generally taking the form of written correspondence from the recipient or counsel or the commencement of legal proceedings: Wilkinson v.

Wilkinson , 2008 ONCJ 96 (OCJ). [ 116 ] In my view, considering all the DBS factors, I consider the just outcome is to vary the child support back to the date of effective notice. That is January 2023, which is just after the 4-month period for which the Mother is not seeking any child support variation and is the month when the payor Father unilaterally terminated his payment of child support and triggered all these issues.

The Father’s failure to disclose his income changes annually, in the circumstances I have described above, is not conduct so blameworthy that in the face of the other considerations should disentitle him to a reasonable expectation of certainty that amounts he paid prior to the date of effective notice would be final and I find both parties should have done better and complied with the 2011 Order of this Court. [ 117 ] I conclude the weight of the evidence, taking into account all of these factors, favours the exercise of discretion on behalf of the claimant to vary child support retroactively and that it go back to January 1, 2023. 7.

I have insufficient information to determine the appropriate amount of retroactive child support [ 118 ] The entire period for which I have concluded that Jaxon is entitled to retroactive child support falls within the time Jaxon was over the age of majority.

Just as I am unable to determine the amount of the ongoing s. 3 child support under the Suitable Approach from the evidentiary record before the Court, I am unable to determine it for the period of retroactive child support. [ 119 ] This shall be included in the discussion of next steps when the parties arrange with my office a time to return to discuss them. 8. The determination of the sharing of any s 7 expenses after RESP monies have

been fully used shall be deferred to after determining s 3 child support [ 120 ] This is best left to determination after ongoing s 3 child support is known. Therefore, it also shall be included in the discussion of next steps when the parties arrange with my office a time to return to discuss them. 9.

I decline to set an end date on ongoing child support [ 121 ] The Father asked the Court to direct that any ongoing child support obligation “automatically terminate when Jaxon ceases to be a full-time student.” The Mother asked that her requested ongoing s. 3 child support based upon the Guidelines Tables and the sharing of s. 7 expenses after RESP moneys are exhausted, continue until Jaxon “completes his planned master’s degree in architecture.” [ 122 ] Both parties understandably desire some certainty around these next years. [ 123 ] However, the law provides the test for when a parent’s child support obligation ceases and I cannot offer any more certainty than that.

The obligation ceases when Jaxon ceases to be a child of the marriage, when he is no longer “unable by reason of illness, disability or other cause, to withdraw from [his] parents’ charge or to obtain the necessaries of life”. It is not open to me to order a different test apply. [ 124 ] I cannot know in advance when the test shall be met. I cannot order that Jaxon’s child support terminate when he ceases to be a full-time student because at that time he may still be a child of the marriage.

I cannot order that it continue until he completes his next 6 or more years of education as he may no longer be a child of the marriage throughout that time. I cannot deny Jaxon his entitlement at law, nor oblige the Father to keep paying beyond when the law requires it. [ 125 ] Accordingly, I decline both parties’ applications to declare conditions of the cessation of child support. IV. Conclusion [ 126 ] Circumstances have changed materially since the 2011 Order; it may be varied.

Jaxon has remained a child of the marriage since his 18 th birthday, therefore there shall be no return of any of the child support paid by the Father since then, on the basis he ceased being a child of the marriage for some or all that time.

The parties are entitled to an order varying child support retroactive to January 1, 2023, and ongoing. [ 127 ] The amount of the varied child support is unable to be determined at this time, since determining it according to the Guidelines Tables is inappropriate, and the parties failed to adduce sufficient evidence to enable the Court to determine it according to the “condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support” of Jaxon.

Consequently, and in accordance with paragraphs 98, 119 and 120 above, the parties are required to arrange with my office a time to discuss the process for addressing the remaining issues associated with those determinations. [ 128 ] Finally, I decline to tie the cessation of all child support for Jaxon to anything other than when he ceases to be a child of the marriage, which cannot be known with certainty in advance. Heard on the 16 th , 23 rd and 25 th days of January 2024. Dated at the City of Calgary, Alberta this 30 th day of January 2024. P.R. Jeffrey J.C.K.B.A.

Appearances: Emma Wilson for the Defendant/Applicant Ryan J. Barata and Hannah Rizzotti (Student-at-Law) for the Plaintiff/Respondent

[1] The “ Bates v Bates ” decision referred to in this quote appears to be PB v EB aka EB , 1995 ABCA 2 at para 5 .