Couchman v Couchman, 2023 ABKB 438

Court of King’s Bench of Alberta Citation: Couchman v Couchman, 2023 ABKB 438 Date: 20230724 Docket: 4810 025682 Registry: Red Deer Between: David Allen Couchman Plaintiff/Applicant - and - Lorae Theylon Couchman Defendant/Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice S.N. Mandziuk _______________________________________________________ I. Introduction [ 1 ] The parties married on August 12, 2000, separated in early September 2016, and obtained a Divorce Judgment and Corollary Relief Order on October 23, 2017 (“Divorce Judgment”). They entered into Minutes of Settlement in June 2017, prior to the divorce.

[ 2 ] The parties have two children: Traford born February 24, 2004 (age 19) and Cannon born May 20, 2008 (age 15). [ 3 ] The children have resided primarily with Ms. Couchman since separation. Initially, Mr. Couchman had parenting time with both children but presently he has little to no contact with Traford. The disruption in the relationship between Traford and Mr. Couchman began not long after the parties separated and since then contact between the two has been sporadic, initiated almost exclusively by Mr. Couchman and primarily via text messages. Mr.

Couchman continues to see Cannon regularly. [ 4 ] Traford turned 18 in February 2022 and graduated from high school in June 2022. Traford continues to reside with Ms. Couchman. In September 2022, he commenced an Open Studies program at Red Deer Polytechnic (“RDP”) with the intention of transferring into RDP’s Business Certificate program. His ultimate goal is to work in the music industry. [ 5 ] The Minutes of Settlement and the Divorce Judgment set out Mr. Couchman’s child support obligation. Ms. Couchman’s Guideline income was set at $13,000 and Mr. Couchman’s at $123,400.

He was ordered to pay s 3 child support of $1,745 per month for both children. [ 6 ] Paragraph 15 of the Divorce Judgment provides for an annual cap on s 7 expenses of $2,000 for both children. Any s 7 expense incurred above this $2,000 cap is to be paid by the parent who incurred the expense at their own cost, and not shared, if the other parent did not provide their consent to the incurring of the expense.

That consent is not to be unreasonably withheld. [ 7 ] At the time of the Divorce Judgment, the children’s s 7 extracurricular activities included lacrosse and basketball for Traford and hockey and basketball for Cannon.

Section 7 expenses were intended to include the hotel and travel expenses of the party scheduled to have parenting time with the children if they were attending an activity with a child out of town. [ 8 ]

Section 3 child support has been recalculated by the Child Support Recalculation Program since 2020. The last Recalculation Decision is dated September 21, 2021. It specifies that Mr. Couchman is to pay s 3 child support of $2,247.00 per month based upon his income in 2020 of $158,643. Mr. Couchman’s employment income was $158,805 in 2020, an amount higher than the amount assessed by the Recalculation Program. At present, Mr. Couchman pays 76% of the children’s s 7 expenses. [ 9 ] Mr.

Couchman continues to pay the Director of Maintenance Enforcement (“MEP”) the current amount of child support payable by him pending the outcome of these applications. II. The Applications [ 10 ] Mr. Couchman applies to terminate or reduce his s 3 and s 7 child support obligations with respect to Traford, retroactive to June 2022. Mr. Couchman argues that Traford ceased to be a “child of the marriage” as defined in section 2(1) of the Divorce Act , RSC 1985, c 3 when he finished high school in June 2022. Mr.

Couchman’s position is that he should not have to pay child support for Traford because Traford has unilaterally terminated his relationship with him. He feels Traford is capable of contributing towards his own education and of supporting himself. [ 11 ] Ms. Couchman argues that Traford remains a “child of the marriage” because he is a full-time student, resides with her and is financially dependant upon her. She asserts she should continue to receive s 3 and s 7 child support for Traford. Ms. Couchman has cross applied for an order declaring that Traford continues to be a “child of the marriage.” [ 12 ] Ms.

Couchman also seeks payment of s 7 expenses retroactive to 2019, an order increasing the s 7 cap to $3,500.00 per year, payable monthly, for both children, and an order releasing RESP funds to Traford for education purposes. [ 13 ] There are no issues with respect to Cannon, except for Ms. Couchman’s request to increase the s 7 annual cap. III. Issues [ 14 ] Is Traford a “child of the marriage” within the meaning of the Divorce Act ? [ 15 ] If Traford is still a “child of the marriage” within the meaning of the Divorce Act , what is the scope of Mr.

Couchman’s s 3 and s 7 child support obligation in respect of Traford? [ 16 ] Should the s 7 annual cap for both Traford and Cannon be increased? [ 17 ] Should the RESP funds be released for Traford’s benefit? IV. Analysis A. Is Traford a child of the marriage within the meaning of the Divorce Act ? 1. General Legal Framework [ 18 ] “Child of the marriage” is defined in s 2(1)(

b) of the Divorce Act as meaning: a child of two spouses or former spouses who, at the material time ... 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.

[19] The term “other cause” has been, in turn, defined in the jurisprudence as including an adult child who is engaged in post-secondary education or training, but the case law is clear that simply attending at an educational institution is not enough. [20] Erb J explained in SLF v JWF, 2016 ABQB 635 at para 83 [SLF] that: The onus is on the party seeking the order to prove that an adult child who is pursuing post-secondary education is entitled to support asa “child of the marriage” within the meaning of section 2(1) of the Divorce Act: Olson v Olson, 2003 ABCA 56 , [2003] AJ No230 (CA).

The party must produce persuasive evidence that the child is not financially independent. Evidence of that nature includestranscripts and academic performance records, grants, scholarship applications, employment records, and a budget setting out reasonableexpenses: Heubach v Heubach, 2011 ONSC 1057 at para 38. [21] More recently, Feth J in Mirzahi v Sana, 2022 ABQB 313 [Mirzahi], dealing with child support payable under the FamilyLaw Act, SA 2003, c F-4.5, noted at paras 10 and 11: [10] Once a child turns 18 years of age in Alberta, the child is no longer presumptively entitled to child support.

The onus ofproving entitlement for an adult child rests with the party seeking the support since they must bring themselves within the scope of thelegislation.

The evidentiary onus is well-recognized, although usually discussed within the context of the Divorce Act, RSC 1985, c 3 (2dSupp): JMB v ACB, 2006 ABCA 150at para 26 [JMB]; Olson v Olson, 2003 ABCA 56at para 13 [Olson]; KAB v TSP, 2020 ABQB174at para 67. [11] A child who is 18 years of age or over is not automatically a child of the relationship, for the purposes of child support,simply by virtue of being a full-time post-secondary student, although such students will typically qualify: MacLennan vMacLennan, 2003 NSCA 9at para 39 [MacLennan]; KMR v IWR, 2020 ABQB 77at para 49 [KMR]; Lehtonen v Kuper, 2011 ONSC5280 at para 24.

The parent seeking continuing child support must establish that the adult child has not withdrawn from parental chargeor is not yet able to obtain the necessaries of life because they are a full-time student: Renouf v Bertol-Renouf, 2004 ABQB 885atpara 25 [Renouf]; Wahl v Wahl, 2000 ABQB 10at para 34 [Wahl]. [22] The Alberta Court of Appeal and Justices of this Court have accepted the analysis in Farden v Farden, (1993), (BC SC), 48 RFL (3d) 60 (BC Master) [Farden] when addressing the issue of child support for a child over the age of 18 who isenrolled in a post-secondary program:[1] Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a “child of themarriage” requires examination of all of the circumstances.

It is not a conclusion which follows automatically from proof of attendanceat the institution [McNulty v. McNulty (1976), (BC SC), 25 R.F.L. 29 (B.C.S.C.)].

In my view the relevantcircumstances include: (1) whether the child is in fact enroled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to 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. [23] No one single Farden factor is determinative; the list is not conclusive.

This is a contextual, individualized analysis. TheCourt in Dorey v Dorey, 2011 ABCA 192 held at para 4: While the Farden factors are helpful considerations in determining whether a child remains a child of the marriage, they do not representan exhaustive list and not all must be satisfied before a chambers judge can conclude that the child remains a child for the purposes ofthe Act. [24] The onus is on Ms. Couchman to demonstrate that Traford remains under her charge and is not able to withdraw from hercharge because of one of the enumerated reasons in the Divorce Act. In this case, the ground argued by Ms.

Couchman is that Traford isa full-time student. [25] Counsel agree that Farden represents the applicable analytical framework. 2. The Farden Factors: Discussion i. Whether the child is enrolled in a full-time course of studies [26] This application was commenced by Mr. Couchman in August 2022. In September 2022, Traford commenced full-timeenrolment in the Open Studies program at RDP to upgrade his marks and to take courses required to enrol in RDP’s Business Certificateprogram. The evidence indicates he was enrolled and registered in the Open Studies program for the Fall 2022 term (September 1, 2022

to December 31, 2022). [ 27 ] In September 2022, Traford was also enrolled and registered full-time in the Business Certificate program at RDP for the Winter 2023 term (January 1, 2023 to April 30, 2023) and the Spring 2023 term (May 1, 2023 to June 30, 2023). [ 28 ] The confirmation letters attached to Ms. Couchman’s Affidavit sworn November 21, 2022 (November Affidavit) as Exhibit F indicate that Traford was enrolled and registered in both programs on a full-time basis.

I have insufficient evidence to conclude that Traford did not and has not been attending his classes on what RDP considers to be a full-time basis. Ms. Couchman’s evidence is that in the fall of 2022, Traford had an 8 a.m. math class five days per week, which he never missed. The evidence therefore establishes that Traford is taking a full-time course of studies. [ 29 ] This factor weighs in favour of a finding that Traford remains a “child of the marriage.” ii.

Whether or not the child has applied for or is eligible for student loans or other financial assistance [ 30 ] An adult child is typically expected to contribute to the cost of their post-secondary education by seeking scholarships, bursaries and student loans: Farden at 10; Wahl v Wahl , 2000 ABQB 10 at para 40 [ Wahl ] ; Mirzahi at para 34 . [ 31 ] As indicated by Feth J in Mirzahi , at para 35 , the obligation to accrue some student debt: ... recognizes “the responsibility of young adults to contribute to their own education in a way that reflects self-reliance and diligence”: Omonova at para 54 quoting from N.

Bala, When Does Childhood End? Post-Separation Support for Adult Children in Canada , Queen’s Law Research Paper Series, November 2018, 2018 CanLIIDocs 11064 at 41. [ 32 ] It appears from Exhibit J of Ms. Couchman’s November Affidavit that Traford received a student loan in the amount of $7,140 to assist with the cost of his post-secondary studies. I agree with Mr.

Couchman that the statement provided is not complete (a complete statement would have been preferred) and it is curious that the statement shows a balance opening date of October 31, 2020 but the statement also indicates that the loan was disbursed on August 29, 2022. This would have been just before Traford commenced his program at RDP. I am satisfied that the student loan is for Traford’s studies and not for Ms. Couchman’s studies. [ 33 ] There is also a RESP which the parties established for Traford and contributed to prior to separation, and to which Mr.

Couchman has been modestly contributing since separation. As of July 2022, the RESP had a balance of $10,020.30. It was undetermined whether the RESP funds could be accessed by Traford while in the General Studies program. [ 34 ] There is no evidence that Traford has applied for scholarships, bursaries, or other forms of funding to assist with the cost of his post-secondary education.

However, it is also not evident whether such funding would be available for a Certificate based post- secondary program or whether he might have been successful in applying for a scholarship as they are typically awarded based upon academic merit as opposed to financial need. [ 35 ] This factor is relevant to the quantum of s 3 and s 7 child support payable should I determine that Traford remains a child of the marriage. iii. Career plans of the child [ 36 ] Traford is undertaking a Business Certificate program at RDP.

Although this specific information was not in evidence, the website for RDP indicates that the program is a one-year program and that it is designed for individuals looking to acquire introductory business skills. The Concise Letter of Counsel for Mr. Couchman indicates that it is a 1-year certificate program and Ms. Couchman states in her November Affidavit that Traford will complete this program in the fall of 2023. [ 37 ] According to Ms. Couchman, Traford has for many years wanted to take post-secondary courses related to business. She states that Traford wishes to pursue a career in the music industry.

The courses offered as part of the Business Certificate program, however, are generalized introductory business courses and are not specific to the music industry. [ 38 ] Mr. Couchman argues that Traford does not have a reasonable career plan and is in the Business Certificate program for “something to do.” He contends there is no evidence that Traford’s current post-secondary program will lead to employment in the music industry. [ 39 ] Experience tells us that the post-secondary journey students follow after high school can often be a bit meandering.

Although many undergraduate programs are designed to train a student for a particular job or industry (nursing, engineering or education for example), many do not. Pursuing post-secondary business courses is, on a balance of probabilities, aligned with a reasonable prospect of obtaining gainful and self-supporting employment.

It is not strictly necessary that a particular area of study be directly connected to a particular vocation. [ 40 ] At this point in time, I am not persuaded that the absence of specific music industry content in the introductory Business Certificate program renders Traford’s plans inappropriate or ill-conceived. [ 41 ] Traford may well change programs as he finds out his interests through his studies; he should not be discouraged from doing so.

It is unreasonable to expect a young person, of Traford’s age, with many opportunities in front of him, to make a firm choice with respect to his post-secondary pursuits from which he can never resile. [ 42 ] This factor weighs in favour of a finding that Traford remains a child of the marriage. iv. Ability of the child to contribute to their own support through employment

[ 43 ] Mr. Couchman’s position is that Ms. Couchman has not led sufficient evidence to show why Traford cannot contribute to his own educational and daily expenses by working more. Employment income, along with the RESP and student loans (Mr.

Couchman argues) will provide Traford with sufficient means to complete his studies. [ 44 ] An adult child is typically expected to undertake part-time employment during the school year and/or summer employment to assist with the cost of their general support and post-secondary education: Farden at 10; McLean v McLean , 2014 ABQB 93 at para 12 [ McLean ]; Mirzahi at para 37 .

It is “very rare when a Court will not require a student to contribute, through his or her own earnings, to the cost of his or her maintenance”: Wahl at para 43 ; Nyereyogona v Schofield , 2021 ABQB 662 at para 133 [ Nyereyogona ]; Mirzahi at para 37 . [ 45 ] The party seeking child support should provide information about the adult child’s efforts to earn an income, including employment records or a copy of the adult child’s Income Tax Return: McLean at para 14 ; SLF at para 83 ; Mirzahi at para 37 . While Ms.

Couchman has provided some evidence with respect to the amount Traford has worked since graduating from high school, no detailed records are before me. [ 46 ] Ms. Couchman’s evidence is that Traford has had a part-time job while attending school full-time. He worked 2-3 shifts per week after school, and on weekends at a car wash until it closed down. I note Mr. Couchman described Traford as having worked at the car wash on a casual basis. Thereafter, Traford got another part-time job in retail. During her questioning, Ms. Couchman described Traford as earning spending money. [ 47 ] Ms.

Couchman does not indicate in her November Affidavit or in her Affidavit sworn February 3, 2023 (“February Affidavit”) Traford’s hourly rate or how much Traford earned on average per week at each job. Ms. Couchman did not submit Traford’s T4s into the evidence prior to the hearing of the Chambers applications. Nothing is before me about his employment-related savings to date, if any. Furthermore, the record does not indicate whether Trafford intends to work during the summer of 2023 or what his income from summer employment might realistically be.

I have substantial concerns about these gaps in the evidence. [ 48 ] Given Traford’s work experience in retail, at least minimum wage, full-time employment should be available to him during the summer break. Full-time summer employment, even at the $15 minimum wage, could provide an income of between $8,000 and $10,000 over the four summer months. Working part-time for 8 months during the second year of his program would add another $2,000.

Unfortunately, the evidence does not address Traford’s employment prospects, intentions, or likely earnings. [ 49 ] In any event, it is not reasonable to expect a child’s ability to earn an income while attending post-secondary studies to obviate entirely the parental obligation to support a child of the marriage. [ 50 ] As well, I note Traford has been struggling with and has been receiving tutoring in math. This will reduce the amount of time he has available to work during his school terms. [ 51 ] This factor does not counter significantly the child of the marriage argument advanced by Ms. Couchman.

It is relevant to the issue of quantum should I determine that Traford remains a child of the marriage. v. Age of the child [ 52 ] Traford is currently 19 years of age. He is only one year older than the age of majority in Alberta. He turned 18 before completing high school. [ 53 ] This factor weighs in favour of Traford continuing to be a child of the marriage as his age makes it less likely that Traford will have withdrawn from his parents’ charge. vi. Academic performance and demonstrated success in the chosen course of studies [ 54 ] Mr.

Couchman’s evidence is that Traford cannot complete the Business Certificate program until he receives at least 65% in Math 30. He is concerned about Traford’s performance in math. His mark was 52% in high school. He took this course at RDP in the Fall of 2022 but dropped the course after receiving a grade of 35%. [ 55 ] Mr. Couchman argues that Traford’s academic performance, particularly in math, is poor, and he has not shown any aptitude towards success in his current course of studies. It is also unclear to Mr. Couchman how Traford’s course of studies will lead to a career in the music industry. [ 56 ] Ms.

Couchman argues that Traford only struggles with math and has engaged tutors to assist him. She says Traford has attended all of his classes. According to Ms. Couchman, Traford is working very hard in school and other than in math, he is doing extremely well in all his classes. Unfortunately, the transcript that is in evidence is not legible. Based on Ms. Couchman’s evidence, I find Traford is pursuing his course of studies with diligence. [ 57 ] Past is not always prologue. It is far too early, in my view, to label Traford’s difficulties in math as having potential permanence.

Traford may well take his challenges with math as a signal that business is not the right program for him, and he may choose a different field of study. Where his post-secondary education will lead him is uncertain. There is not enough evidence to conclude that Traford’s struggles with math will derail his education and career potential, particularly where this is recognized and attempts to remedy the situation are being undertaken. [ 58 ] Demonstrated success in the chosen course of studies does not equate with outstanding achievement, or the level of aptitude that Mr.

Couchman subjectively believes should be shown. [ 59 ] This factor weighs in favour of a finding that Traford continues to be a child of the marriage.

vii. Parental education planning [60] The investment by the parties into the RESP account for Traford is evidence of an intent to set aside money to support hispost-secondary education. Mr. Couchman has continued to contribute to the RESP since the parties separated in the amount of $30 permonth. [61] I am satisfied that the parties intended that Traford would pursue post-secondary studies. [62] This factor favours a finding that Traford remains a child of the marriage. viii.

Unilateral termination of the parent-child relationship [63] On this issue, the Court in Farden cited Law v Law (1986), 2 RFL (3d) 458, (Ont SCJ) at 462: In the case at bar, Kimberley Ruth Law has reached the age of 22. She has not seen fit to contact her father to keep him appraised of herprogress in university and no evidence was made available to the respondent until he unilaterally ceased making maintenance paymentsfor her benefit when she turned 21 in 1985. ... Kimberley has certainly withdrawn from the applicant’s charge as a result of her failure tomaintain any contact with him.

Although it is sufficient that she be in the custodial parent’s charge, I am of the view that where, as here,a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be consideredby the trial judge in determining whether it would be “fit and just” to provide maintenance for that child. A father-child relationship ismore than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few dutiesin return.

It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or herfather in the absence of any conduct by the father which might justify the child’s neglect of his or her filial duties." [64] Mr. Couchman initially had parenting time with both children after separation.

However, shortly thereafter, in his view,Traford made the decision to have little, if anything, to do with him despite his ongoing significant efforts to connect and repair hisrelationship with his son. [65] The reasons behind Traford’s lack of relationship with his father are not in evidence from Traford himself. [66] Traford was 12 when his parents’ marriage ended. According to Ms. Couchman’s evidence, which Mr. Couchman denies, itwas Traford who discovered Mr. Couchman’s indiscretions when he witnessed his father “being inappropriate” with the woman that isnow Mr. Couchman’s wife. Mr.

Couchman’s evidence is that it was Ms. Couchman who discovered the affair. Regardless of whodiscovered the affair and when, it is reasonable to conclude that the circumstances under which Mr. and Ms. Couchman’s marriageended are at the core of the strained relationship between Mr. Couchman and Traford. [67] Mr. Couchman’s evidence is that he has made significant efforts to try to stay in touch with Traford and to reconcile hisrelationship with him. Mr. Couchman says that he texts Traford almost daily, but rarely receives a response.

Messages from June 2018-June 2022 are in evidence, though these are not all of the exchanged messages. Mr. Couchman regularly attended Traford’s lacrossegames with his new spouse and stepdaughters. [68] Mr. Couchman states that the only times that Traford reaches out to him are when he wants him to pay for something. He sayshe has made consistent efforts to try to have a relationship with Traford and provides him with gifts and covers additional expenses fromtime to time. Mr.

Couchman has sought to repair the relationship by suggesting talks on the phone, grabbing a quick lunch, or doingactivities together; those invitations have been ignored or declined by Traford. [69] The text messages between Mr. Couchman and Traford are quite sad to read. They do show a father who wants to have arelationship with his son and a son who does not feel the same way. To be fair, Mr.

Couchman has made some unfortunate remarks attimes, but they appear to be made out of frustration and as a last resort response from a place of deep hurt and rejection. [70] Some of Traford’s text messages to his father, such as they are, are very disrespectful, referring to Mr. Couchman’s new wifeas a “hoe”. Traford calls his father by his first name rather than dad. He has called his father an “asshole” in his messages to him. [71] It is apparent from the text messages that Ms. Couchman has discussed the parties’ financial matters with Traford and has toldTraford that Mr.

Couchman is not paying what he is supposed to be paying. It also appears from Ms. Couchman’s February Affidavitthat she may have discussed the reasons for the breakdown of the parties’ marriage with Traford. Bringing Traford into his parents’ legaland emotional issues is also unfortunate. [72] Ms. Couchman responds in argument that Mr. Couchman has “made minimal efforts to reconnect with the child.” In herNovember Affidavit, she deposes that Mr. Couchman “was more interested in his new relationship than he was in the children.

He neverasked for more time with the children in 2016, nor has he requested any more time since our divorce.” [73] Ms. Couchman complains that Traford is not included in family vacations with Mr. Couchman’s new spouse and her children,he will not give Traford “proper gifts” unless Traford comes to Mr. Couchman’s house, he makes unreasonable demands, he hasrepeatedly disparaged Ms. Couchman to Traford, and has been disparaging Traford to their other son Cannon. Mr. Couchman deniesthese allegations. [74] Ms. Couchman also alleges that Mr. Couchman makes no effort to attend therapy with Traford. Mr.

Couchman explains hehas not booked therapy sessions because he was told several times that Traford would not attend. [75] It is fruitless to go through the entire minutiae of this relationship. Traford’s lack of relationship with his father is a factor indetermining whether he remains a child of the marriage, but not a determinative one. Johnstone J held in Wahl at para 67: the quality of the parent/child relationship rarely determines the matter. It is but one of the “failing” factors; that is, there must be others

in addition to it, unless the circumstances are extremely grave. [76] Feth J in Mirzahi noted (at para 50): ... several authorities suggest that this factor will rarely be significant or determinative, and that limited or no weight should attach toit: Menegaldo at para 156; KNH at para 56; Shaw v Arndt, 2016 BCCA 78 at para 31; Urquhart v Loane, 2016 PECA 15 atpara 27; Olszewski v Willick, 2009 SKCA 133 at para 34: Rebenchuk v Rebenchuk, 2007 MBCA 22 at para 56 [Rebenchuk].Moreover, in Menegaldo at para 155, after reviewing the authorities, Justice Chappel held that a parent seeking to avoid child support onthis basis bears the onus of proving the child’s repudiation of the relationship, that the onus is a high one, and that “the parent must showthat they have made meaningful efforts to maintain a positive relationship with the adult child.” I share the views expressed in thosecases. [77] It is not for the Court to determine who is at fault for Mr.

Couchman’s and Traford’s relationship being in the state that itcurrently is. It suffices to say I am satisfied that Mr. Couchman, though not perfect, has made meaningful attempts to repair hisrelationship with Traford. [78] Manderscheid J in Nyereyogona v Schofield, 2021 ABQB 662 made the following observations at para 160, referring to SLF(at para 88): ... it seems reasonable to expect an adult child, who wishes to receive financial support, to make an effort to maintain some form of arelationship, or at a minimum contact, with the parent.

It need not be a close relationship, but modest or minimal effort isexpected. See: Magotiaux v Magotiaux, 2016 SKQB 406 at para 24. If there is no such obligation it opens the door to windfalls for thechild who views the payor as nothing more than a source of funding [79] The evidence establishes that there is some form of a relationship between Traford and his father. It is not close at this timeand has not been close since the parties separated in 2016. As Ms. Couchman described it herself, their relationship has been ruptured andit has not yet been repaired.

However, it is clear on the evidence that Traford and Mr. Couchman are in contact with each other. [80] It is very unfortunate that this relationship is so damaged. I can only hope that Traford and his father do indeed attendcounselling or find some other way to clear the air between them and work towards a productive relationship. Children are extremelyimportant to their parents and parents are extremely important to their children. [81] I am not satisfied on the evidence that the relationship has been “unilaterally terminated” by either Traford or Mr.

Couchman. [82] I do not consider this Farden factor to be significant, but as far as it plays a role in the analysis, it weighs in favour of Trafordcontinuing to be a child of the marriage. ix. Means, needs, and other circumstances of the parents and the child [83] I note that no budget has been presented in evidence by Ms. Couchman. Her evidence is that while attending RDP, Trafordcontinues to live at home.

She advises that if Traford were to rent a place, including a dorm room, the cost would be approximately $667per month, not including the cost of food, parking, and other school related expenses. [84] I do not have enough evidence to reach a conclusion on whether this factor is relevant. It does not appear that Traford is doingwithout in any significant way. That said, based solely upon his income, Mr. Couchman does have the means to support Traford whileTraford completes his post-secondary education. 3. Conclusion on Child of the Marriage Issue [85] Ms.

Couchman has the onus to show, on all the evidence, that Traford remains a child of the marriage within the meaning ofthe Divorce Act. The civil standard of proof applies, being balance of probabilities, which requires the Court to “... scrutinize the relevantevidence with care to determine whether it is more likely than not that an alleged event occurred” (FH v McDougall, 2008 SCC 53, [2008] 3 SCR 41 at para 49). [86] Jerke J noted in KMR v IWR, 2020 ABQB 77 “[i]t may be that the Courts are recognizing a broader social reality as concernsthe concept of ‘child of the marriage’” (at para 38).

He goes on to cite Pentelechuk JA’s comments in Brear v Brear, 2019 ABCA 419 atparas 51-52 and 55: There are few children, whether or not from separated or divorced families, who are economically self-sufficient on their 18th or 19thbirthday or in the month they complete high school. But unless a child is entering post-secondary studies, the common reality is childsupport obligations of the payor parent often cease on or close to these dates.

In her article, “Exploring Child Support for Adult Children:The Need for a Broader Conception of ‘Other Cause’” (2018), 37 CFLQ 139 (WL), Rose Branton argues that “child of the marriage”has been interpreted far too restrictively, is counter to principles of statutory

interpretation, and does not reflect the current economicconditions for young adults. Indeed, Statistics Canada census data shows that while more young adults may be moving back home than in the past, an even greaterproportion are staying in their parents’ home longer. The percentage of young adults aged 20 to 34 living with at least one parentincreased from 33.1% in 2006 to 34.7% in 2016. For those aged 20 to 24, the proportion “co-residing” with their parents rose from 58.3%in 2001 to 62.6% in 2016. For those aged 20 to 24 and living with their parents in 2011, 69% reported they had never left their parents’home. ...

Given the statistical trend of children remaining with their parents for longer and longer periods, this remains a cogent and compelling reason why it is not necessary to establish that the children remain children of the marriage at the time a retroactive variation application is made. If inadequate support has been paid, the child loses, the recipient parent loses, or both lose. [ 87 ] I conclude that, based upon all the evidence, applying the civil standard of proof, Traford remains a child of the marriage and therefore Mr. Couchman remains obligated to pay child support. B.

If Traford is still a child of the marriage within the meaning of the Divorce Act , what is the scope of Mr. Couchman’s s 3 and s 7 support obligation? [ 88 ] Ms. Couchman states that Mr. Couchman fulfilled his child support obligations until he remarried. Since 2019, he has refused to pay s 7 expenses and is not cooperative with respect to medical plan reimbursements. [ 89 ] Ms. Couchman seeks ongoing s 3 child support and s 7 expenses for Traford (and Cannon), together with an order requiring Mr.

Couchman to contribute towards s 7 expenses dating back to 2019 in the total amount of $9,227.94, according to Exhibit “B” of Ms. Couchman’s February Affidavit. As will be addressed more thoroughly when I discuss the next issue below, she further seeks to increase the annual s 7 expense cap to $3,500, with Mr. Couchman’s contribution to be paid monthly. 1.

Ongoing s 3 and 7 child support [ 90 ] As noted in Colucci v Colucci , 2021 SCC 24 at para 34 [ Colucci ] : The enactment of the Guidelines in 1997 marked a paradigm shift in Canadian child support law away from a need-based approach to one which clearly established the child’s entitlement to support commensurate with the payor’s income ( D.B.S. , at paras. 42- 45).

The Guidelines rest 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” ( Divorce Act , s. 26.1(2) ). [ 91 ] Section 17(1) (

a) of the Divorce Act gives the Court the power to “... make an order varying, rescinding or suspending, retroactively or prospectively ... a support order or any provision of one, on application by either or both former spouses” and insofar as the application concerns child support, the Court must be satisfied 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” (s 17(4) Divorce Act ). [ 92 ] Section 3(2) of the Guidelines sets out how child support is determined for a child over the age of majority: Child the age of majority or over

(2) Unless otherwise provided under these Guidelines , where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [ 93 ] I conclude that it would be inappropriate to use the approach set out in s 3(2)(

a) and decline to order child support for Traford based upon the full table amount. See the discussion in Geran v Geran , 2011 SKCA 55 at paras 55-56 . [ 94 ] Taking into account the student loan Traford has received and attributing full-time minimum wage income to him during the summertime and some part-time income while he completes his post-secondary education program, I conclude that commencing September 1, 2022, Mr. Couchman should pay ongoing s 3 child support for Traford as follows: (

a) The amount of child support payable for Traford should be calculated by subtracting the amount payable for one child based upon Mr. Couchman’s Guideline income from the amount payable for two children. The difference shall be considered to be on account of Traford (“Traford Amount”). (

b) The Traford Amount shall be reduced by 25% during Traford’s school terms, provided he is attending school full-time. If he is attending school part-time, the Traford Amount shall be reduced by 50%. Ms. Couchman shall be required to provide ongoing proof to Mr. Couchman that Traford is attending school full-time. Full-time or part-time attendance will be as defined by the educational institution. (

c) The Traford Amount shall be reduced by 50% during the summer months when Traford is not attending school and is expected to earn money from summer employment. [ 95 ] In regard to the calculation of Mr. Couchman’s Guideline income, at my request, post-hearing of the Family Chambers applications, counsel for Mr. Couchman emailed my office a copy of his client’s Income Tax Returns for the years 2019-2021 and his Notice of Assessment for the year 2022. Mr. Couchman’s income has increased since 2020. His income in 2022 was substantially more: $239,729. In his email to our office dated July 14, 2023, counsel for Mr.

Couchman explains the increase in Mr. Couchman’s income is principally due to a bonus he received when his company was merged with Cenovus. This bonus, since it is employment income received by Mr. Couchman, is to be included in Mr. Couchman’s 2022 Guideline income for child support purposes. [ 96 ] Ongoing s 7 expenses for Cannon shall be shared in proportion to the parties’ respective Guideline incomes, subject to the applicable cap which I shall discuss below.

[ 97 ] Regarding Traford’s s 7 expenses, s 7(2) of the Federal Child Support Guidelines , SOR/97-175 (“ Guidelines ”) provides: Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [ 98 ] The parties shall share the cost of Traford’s tuition, fees and necessary (non-discretionary) books and materials mandated by the post-secondary institution for the specific program he is pursuing until he achieves his first college diploma or university degree or completes up to four consecutive college certificates.

It is my understanding that once Traford completes his current program he will have achieved a Business Certificate and not a Business Diploma. [ 99 ] The parties shall also share the extraordinary expenses for Traford’s extracurricular activities, and that portion of health- related expenses not covered by either party’s health benefits coverage or any coverage available to Traford through his work or education. [ 100 ] Traford is an adult. He should also contribute to the cost of his post-secondary education and his extracurricular activities. As well, the RESP should be used to fund his education.

I therefore direct that Traford pay one-third of the cost of his post-secondary expenses, after a contribution is made from the RESP, and the remaining two-thirds shall be shared proportionately by his parents as a s 7 expense. This direction is subject to my specific directions with respect to the RESP withdrawals below and my finding that a portion of the RESP withdrawals should be attributed to Mr. Couchman’s proportionate share given his post-separation contributions to the RESP. [ 101 ] The $7,140 in student loans that Traford received will need to be repaid.

I find that Traford is responsible for paying back $2,380 of this amount and the parties are responsible for paying back the balance in proportion to their respective incomes earned in 2022. [ 102 ] In regard to the cost of Traford’s extracurricular activities, as a reminder to the parties, s 7(1.1) of the Guidelines defines the word “extraordinary” for the purpose of s 7(1)(

f) as follows: (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [ 103 ] Traford has been playing competitive lacrosse since he was very young and has played at an elite level. He made Team Alberta in 2019. I find that the expenses associated with his lacrosse playing continue to qualify as a s 7 expense, should he decide to continue to regularly play this sport. [ 104 ] Ms. Couchman’s evidence is that Traford took guitar lessons before the parties separated but it is not specifically listed as a s 7 expense in the Divorce Judgment. [ 105 ] However, bearing in mind the fractured relationship between Mr.

Couchman and Traford, and the fact that Mr. Couchman’s proportionate share of s 7 expenses is considerably more than Ms. Couchman’s share, I order that Traford pay two-thirds (67%) of the extraordinary expenses associated with his lacrosse playing; the balance of one-third (33%) shall be shared by the parties in proportion to their respective incomes. See: MMS v RJS , 2006 ABQB 668 at paras 27-33 . [ 106 ] Traford shall be solely responsible for paying the cost of his guitar lessons. [ 107 ] In regard to the children’s health-related expenses, within 14 days of the date of these Reasons for Decision, Mr.

Couchman shall provide Ms. Couchman with a copy of his current health benefits coverage information/card so that she can have the children’s health-related expenses direct billed to his insurance provider. [ 108 ] The Court Order arising from this decision should be drafted in such a fashion that the children’s s 7 expenses will be enforced by MEP. 2. Arrears of s 7 Expenses [ 109 ] I now turn to Ms. Couchman’s cross-application for arrears of s 7 expenses dating back to 2019, which application Mr. Couchman opposes. Ms. Couchman argues that Mr.

Couchman has refused to contribute towards the children’s s 7 expenses since 2019.

[ 110 ] Ms. Couchman provided as Exhibit “B” to her February Affidavit a spreadsheet listing what she claims to be the s 7 expenses incurred by her during the period 2019 to 2022. The expenses total $15,892.39. Using an 85/15 proportionate share division, Ms. Couchman calculates Mr. Couchman’s share to be $12,207. After deducting the total amount that she calculated was paid by Mr. Couchman towards the children’s s 7 expenses, being $2,979.06, Ms. Couchman is seeking an order requiring Mr.

Couchman to pay arrears of s 7 expenses in the total amount of $9,227.94 (I note the Concise Letter from her Counsel indicates Ms. Couchman is seeking a slightly different amount of s 7 arrears, being $9,288.46). [ 111 ] In 2019, the costs relate to lacrosse, pond hockey, and hockey equipment. The categories of expenses are the same in 2020, plus driver’s education. In 2021, there are guitar lessons, lacrosse costs, and a tutor cost (for mathematics). In 2022, there are guitar lessons and lacrosse costs. The majority of the expenses incurred relate to Traford. [ 112 ] Mr.

Couchman provided a list of s 7 expenses that he paid for going back to 2019. He claims to have paid the following amounts: 2019 = $2,055.67 2020 = $846.07 2021 = $162.32 Total $3,064.06 [ 113 ] Ms. Couchman does not dispute that Mr. Couchman paid a total of $2,979.06 towards s 7 expenses. [ 114 ] Mr. Couchman’s evidence is that any s 7 expenses towards which he has refused to contribute have been improperly characterized by Ms. Couchman as s 7 expenses or there were other reasons for him not contributing to them.

For example, he declined to contribute to the driver’s education cost as he was informed this is not a s 7 expense, to lacrosse registration in 2021 as he felt proper COVID-19 protocols were not in place, and to the guitar lessons as payment of same would have brought the parties outside of the $2,000 annual cap. [ 115 ] Mr. Couchman also questions whether he should be contributing towards gas for Ms. Couchman’s attendance at lacrosse events. However, paragraph 14 of the Divorce Judgment provides: ... and both parties are entitled to attend the children’s activities.

In the event both parties travel out of town to attend a child’s extracurricular activity, only the hotel and travel expenses of the party who is scheduled to have access shall be considered a

section 7 expense; the other party shall be solely responsible for his/her own travel expenses. [ 116 ] Gas expenses are typically considered a form of travel expense. If Ms. Couchman travelled to one of Traford’s lacrosse events out of town during her parenting time, her travel expenses are a s 7 expense pursuant to paragraph 14 of the Divorce Judgment. It does not matter whether she purchased the gas to drive to the event before she departed or filled up on her way home or when she returned. [ 117 ] In addition, Mr. Couchman states that Ms.

Couchman did not provide him with the receipts for the s 7 expenses she incurred in 2022 until January 2023. [ 118 ] DBS v SRG , 2006 SCC 37 [ DBS ] , Michel v Graydon , 2020 SCC 24 [ Michel ] and Colucci are the leading Supreme Court of Canada decisions on retroactive s 3 child support. In DBS , Justice Bastarache, speaking for the majority of the Supreme Court, set out four factors to guide judicial discretion to determine whether there should be a retroactive variation of child support, and if so, how far back it should extend. The four factors are: the recipient parent’s reason(

s) for delaying their application for child support; the conduct of the payor parent; the circumstances of the child; and the hardship the award creates for the payor parent. [ 119 ] The four factors set out in DBS were more recently considered by the Supreme Court in Michel (para 29 , per Brown J; paras 111-26, per Martin J). In Michel , the Supreme Court reiterated certain important principles governing retroactive child support, emanating from DBS .

These include: • Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para 2). • Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para 5). • In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and ... flexibility.” A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para 133). [ 120 ] In general, retroactive awards will not go back more than three years from the date formal notice was given, absent blameworthy conduct by the payor parent: DBS at para 123 . [ 121 ] Canadian courts have held that the same four DBS factors apply to an application for the retroactive payment of s 7 expenses.

See for example: Sigalet v Hunt , 2019 BCSC 1428 at para 75 . However, one of the key considerations is whether the party seeking the s 7 expense contribution, on a retroactive basis, notified the payor of the kinds of expenses being incurred (or to be incurred) or the associated amounts or that they demanded or requested that the payor contribute to them: MLR v SLR , 2020 ABQB 444 at paras 42-43 and 46 [ MLR ] ; Nyereyogona at paras 178-181 ; NJP v DWH , 2006 ABQB 352 at para 9 ; Bland v Bland , 1999 ABQB 236 at para 24 . [ 122 ] The following DBS factors and other considerations militate against Ms.

Couchman’s position. I have specifically considered

the following: (

a) Ms. Couchman’s Family Cross-Application was filed on November 21, 2022. Her only reason for not filing sooner is a lack of funds for legal counsel, but it is noteworthy that her income has not changed much, and she has only submitted a single s 7 receipt to MEP. There is no reasonable excuse for this delay.

Section 7 expenses must be pursued in a timely way, not years after the fact: MLR at para 45 . (

b) According to Mr. Couchman’s evidence, Ms. Couchman did not provide Mr. Couchman with the receipts for the s 7 expenses incurred in the year 2022 until January 2023 and did not request that he contribute to the expenses at the time that she incurred them in 2022. (

c) Mr. Couchman has actively participated in the Recalculation Program since at least 2020 and has disclosed the required financial information. (

d) Although I question whether Mr. Couchman unreasonably withheld his consent to some of the expenses that Ms. Couchman was seeking a contribution towards, I cannot characterize, on the evidence, Mr. Couchman’s conduct as “blameworthy” particularly given the wording of paragraph 15 of the Divorce Judgment. (

e) Traford has part-time employment and could have, after turning 18, contributed some of the monies he earned to pay for the cost of his extracurricular activities. (

f) The strained relationship between Traford and Mr. Couchman. (

g) There is no evidence that Traford or Cannon has suffered financial hardship on account of Mr. Couchman’s failure to fully contribute to their s 7 expenses since 2019. [ 123 ] On the other hand, particularly given the large bonus Mr. Couchman received in 2022, I am not satisfied that Mr. Couchman would suffer any financial hardship if I were to make an order requiring him to retroactively contribute to the children’s s 7 expenses. I am also satisfied that Ms. Couchman did approach Mr.

Couchman about contributing towards these expenses prior to commencing her Cross-Application, with the exception perhaps in relation to the year 2022. Furthermore, Traford’s lacrosse expenses and Cannon’s hockey expenses are specifically listed as s 7 expenses in paragraph 13 of the Divorce Judgment. [ 124 ] Mr. Couchman argues that Ms. Couchman has not established the requisite material change in circumstances to warrant a finding of retroactive

section 7 arrears. However, a material change is not required if any order for retroactive s 7 expenses I make is based upon the current wording of the Divorce Judgment. This is because I will not be varying the Divorce Judgment but simply enforcing its terms and calculating the amount of arrears owed by Mr. Couchman, if any. There is a pre-existing order obliging Mr. Couchman to contribute his proportionate share to the children’s s 7 expenses. See: MLR at para 41 ; Nyereyogona at para 181 . [ 125 ] The Divorce Judgment prescribes at paragraph 13 that Mr.

Couchman is to pay 77% of the children’s s 7 expenses and Ms. Couchman 23%. Ms. Couchman’s spreadsheet uses a division of 85% for Mr. Couchman and 15% for herself at least in the year 2019. I have calculated the parties’ respective proportionate share based upon their actual Line 15000 Guideline income in the applicable year. [ 126 ] Paragraph 15 of the Divorce Judgment imposes an annual cap on the children’s s 7 expenses of $2,000. It states: ... neither party shall incur any further

section 7 expenses for the children without first obtaining the consent of the other party, such consent not to be unreasonably withheld. All

section 7 expenses for both children shall not exceed the total sum of $2000 per calendar year. In the event a party wishes to incur an expense over this sum and the other party does not provide his/her consent, the first party may incur the expense at his/her own cost. [ 127 ] As Ms. Couchman did not file her Family Cross-Application until November 21, 2022, I cannot tell from Ms. Couchman’s spreadsheet when the expenses listed for 2019 were incurred and given my finding that Mr.

Couchman has not engaged in blameworthy conduct, I decline to order any retroactive contribution towards the children’s s 7 expenses incurred in 2019. [ 128 ] In 2020, the total of s 7 expenses listed by Ms. Couchman, being $2,318.77, slightly exceeds the $2,000 cap. [ 129 ] The expenses include Traford’s driver’s education at a cost of $660. I understand that Mr. Couchman did not give his consent to this expense being incurred as he had been advised it was not an enumerated s 7 expense. The evidence does not indicate that Mr.

Couchman was not consulted about this expense before it was incurred. [ 130 ] Considering the means of the parties including the fact that Mr. Couchman’s Line 15000 income in 2020 was $158,972, Ms. Couchman’s much lower income of $54,178, and that it was Ms. Couchman that incurred the expense, as well as the fact that it is in a child’s best interests to learn how to drive, I find this expense meets the test for being an extraordinary expense and was reasonable and necessary. I am prepared to treat the driver’s education cost as a valid s 7 expense for Traford.

See: LL v GB , 2008 ABQB 536 at paras 147-148 , aff’d 2009 ABCA 356 and Davis v Davis , 2022 NSSC 212 at para 272 . [ 131 ] Based upon their respective Line 15000/Guideline incomes, Mr. Couchman’s proportionate share was 75%. Applying the cap, his share of s 7 expenses in the year 2020 was $1,500. According to both parties’ calculations he paid $846.07 leaving a balance owed of $653.93. [ 132 ] In 2021, the s 7 expenses total $3,973.91, which well exceeds the $2,000 annual cap. They include guitar lessons at a cost of $1,000. The balance of the expenses is primarily lacrosse-related.

The tutor expense was reasonable and necessary given Traford’s difficulties with math. While paragraph 15 of the Divorce Judgment does open the door to the parties agreeing upon s 7 expenses that were not specifically listed in paragraph 13 of the Judgment, the $2,000 per calendar year cap applies to “[a]ll

section 7 expenses for the children.” I therefore decline to order Mr. Couchman to contribute to the cost of the guitar lessons.

[ 133 ] Based upon his Income Tax Return, Mr. Couchman’s Guideline income in 2021 was $168,043. Ms. Couchman’s was $62,613. Therefore, Mr. Couchman’s proportionate share was 73%. Applying the cap, Mr. Couchman’s share was $1,460. He paid $162.32 leaving a balance owed of $1,297.68. [ 134 ] In 2022, the s 7 expenses total $2,480.28, again over the $2,000 annual cap. Traford turned 18 years of age on February 24, 2022.

Given my conclusion that he should pay 67% of the cost of his lacrosse expenses and 100% of his guitar lessons after turning the age of 18, the spreadsheet does not indicate when the expenses were incurred, and the evidence suggests Ms. Couchman did not provide Mr. Couchman with any of the receipts for 2022 until January 2023, I decline to make an order requiring Mr. Couchman to contribute towards Traford’s s 7 expenses incurred in 2022. [ 135 ] I therefore order Mr. Couchman to pay arrears of s 7 expenses for the years 2020 and 2021 in the total amount of $1,951.61. C.

Should the s 7 annual cap for both Traford and Cannon be changed from its current $2,000 level? [ 136 ] The parties’ s 7 expense arrangement has governed them for more than 5 years. Ms. Couchman has the onus to show on a balance of probabilities that there has been a change in circumstances warranting an increase in the s 7 annual cap from $2,000 to $3,500. [ 137 ] The Divorce Judgment lists in paragraph 13 the following current s 7 expenses: hockey for Cannon, lacrosse for Traford and basketball for both boys. As an adult, Traford can choose to continue to play lacrosse or not.

Cannon has continued to play hockey. It appears that neither child has continued to play basketball. [ 138 ] Ms. Couchman says the $2,000 per calendar year cap was for the listed s 7 expenses (i.e. hockey, lacrosse and basketball) and to avoid Mr. Couchman withholding his consent and payment towards the activities the children were involved in. [ 139 ] The wording of paragraph 15, however, does not limit the application of the annual cap to the children’s extracurricular activities. As previously indicated, the annual cap is applicable to “All

section 7 expenses for both children.” The category of expenses set out in s 7 of the Guidelines is far broader than the s 7 expenses listed in paragraph 13 of the Divorce Judgment. [ 140 ] I find that Traford’s attendance at a post-secondary institution, the costs associated with same being an enumerated s 7 expense, and the significant increase in Mr.

Couchman’s income since the date of the Divorce Judgment (an increase of over $40,000 by 2021), constitute material changes of circumstances warranting a variation of paragraph 15. [ 141 ] Taking into consideration my decision that Traford should contribute at least 67% of the extraordinary expenses for his extracurricular activities and all the costs of his guitar lessons, I am prepared to vary paragraph 15 of the Divorce Judgment as follows: neither party shall incur any further

section 7 expenses for the children without first obtaining the consent of the other party, such consent not to be unreasonably withheld. All s 7 extraordinary expenses for the children’s extracurricular activities , including sports and music lessons, shall not exceed the total sum of $2,000 per calendar year .

In the event a party wishes to incur a s 7 extracurricular activity expense over this sum and the other party does not provide his/her consent, the first party may incur the expense at his/her own cost. [ 142 ] This amendment recognizes the fact that both children will more likely than not pursue a post-secondary education and that the yearly costs of that post-secondary education will likely greatly exceed an annual yearly cap of $2,000. [ 143 ] I decline to make an order requiring Mr.

Couchman to make a monthly contribution towards the children’s s 7 expenses as it is difficult to determine what the yearly total amount could be. D. Are the RESP funds releasable for Traford’s benefit? [ 144 ] The RESP with the Knowledge First Financial had a balance of $10,020.30 as of July 8, 2022. According to Mr. Couchman, the RESP had a balance of approximately $6,000 at the time of the Divorce Judgment. He asserts he has contributed about 40% of the current value by himself since the parties separated. Ms.

Couchman has contributed nothing to the RESP since the date of separation (September 2016). [ 145 ] Exhibit K attached to Ms. Couchman’s November Affidavit shows monthly contributions of $30. Between October 1, 2016 (the first full month after the parties separated) and July 8, 2022, there would have been 69 payments of $30 per month. This equates to $2,070. Assuming Mr. Couchman has continued to contribute $30 per month, this equates to $2,430 over 81 months, as of July 2023. [ 146 ] The parties started the RESP on July 24, 2004, shortly after Traford was born. Traford is named as the sole beneficiary.

Cannon was not born until 2008. Based upon the RESP statements attached as exhibits to each party’s affidavit evidence, Cannon was never added as a beneficiary of this RESP account. I have not been advised by either party whether they started a separate RESP account for Cannon during their marriage or post-separation. [ 147 ] Absent documentary evidence that the RESP account was intended to benefit both Traford and Cannon, I find that the full balance of the RESP account is available to be used to fund Traford’s post-secondary education. [ 148 ] Given Mr.

Couchman was the only parent who contributed to the RESP post-separation, Mr. Couchman’s post-separation contributions should be attributed to him as being part of his proportionate share of Traford’s post-secondary expenses. However, based upon the amount of his actual contributions, I cannot make a finding that Mr. Couchman has contributed about 40% of the current value of the RESP since the parties separated. Rather, assuming the RESP account now has a balance of at least $10,380, I find that Mr. Couchman has contributed 23% of its current value.

[ 149 ] I order, subject to the parties agreeing to a different amount, or any applicable restrictions, that the minimum amount of $2,500 be withdrawn from the RESP account per each year that Traford completes his post-secondary studies. 23% of the yearly amount shall be attributed to Mr. Couchman as being his proportionate share of Traford’s post-secondary education expenses. V.

Summary and Conclusion [ 150 ] On the civil standard of proof – balance of probabilities – I find that Traford is a child of the marriage within the meaning of the Divorce Act . However, the straight application of the Guidelines is not appropriate in this situation. The amount payable by Mr. Couchman for Traford’s support shall be reduced by 25% during Traford’s school terms, provided he is attending school full-time. If he is attending school part-time, the Traford Amount shall be reduced by 50%. [ 151 ] The Traford Amount shall be reduced by 50% during the summer months when Traford is not attending school. [ 152 ] I make the following order with respect to Traford’s s 7 expenses: (

a) Traford shall pay one-third of the cost of his post-secondary expenses, after a contribution is made from the RESP, and the remaining two-thirds shall be shared proportionately by the parties. (

b) Traford shall pay two-thirds (67%) of the extraordinary expenses associated with his lacrosse playing; the balance of one-third (33%) shall be shared by the parties in proportion to their respective incomes. (

c) Traford shall be solely responsible for paying the cost of his guitar lessons. [ 153 ] The funds in the Knowledge First Financial RESP account are fully available for Traford’s post-secondary education. 23% of the RESP withdrawals shall be credited towards Mr. Couchman’s proportionate share of Traford’s post-secondary education expenses provided he continues to contribute to the RESP account. [ 154 ] Paragraph 15 of the Divorce Judgment shall be varied as set out above.

The $2,000 cap shall remain but shall only be applicable to the extraordinary expenses for the children’s extracurricular activities. [ 155 ] The results have been mixed. Each party will bear their own costs. Heard on the 10 th day of March, 2023. Dated at the City of Edmonton, Alberta this 24 th day of July, 2023. S.N. Mandziuk J.C.K.B.A. Appearances: Darren K. Queck Queck & Associates for the Plaintiff/Applicant Iulia Luciana Raluca Ibanescu Vesta Law for the Defendant/Respondent

[1] See for example: Taggart v Taggart , 2019 ABCA 78 at para 6 ; Graham v Graham , 2018 ABCA 66 ; Miller v Joynt , 2007 ABCA 214 at paras 11 and 12 ; PT v RB , 2004 ABCA 244 at para 35 ; and Olson v Olson , 2003 ABCA 56 .