M.J.L. v. G.H. Date:, 2015 BCPC 208

Citation: M.J.L. v. G.H. Date: 20150626 2015 BCPC 0208 File No: 5900 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.J.L. APPLICANT AND: G.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Applicant: Mr. J. Mariona

Appearing in person: G.H. Place of Hearing: Kamloops , B.C. Date of Hearing: May 4, 2015 Date of Judgment: June 26, 2015 INTRODUCTION [ 1 ] G.H. and M.J.L. have a child together named S.M.H. S.M.H. was born on [omitted for posting]. He was the product of a “one- night stand”. G.H. and M.J.L. have never resided together and have never had an effective co-parenting relationship. M.J.L. has not had a relationship with S.M.H. since S.M.H. was 12 years old. M.J.L. has, however, paid child support for S.M.H. from November 1, 1996 to October 1, 2014. [ 2 ] S.M.H. turned 19 on [omitted for posting].

At that point, M.J.L. believed he no longer had to pay child support for S.M.H. and discontinued making child support payments to G.H. [ 3 ] On December 17, 2014, G.H. filed an application seeking ongoing child support for S.M.H.

On January 22, 2015, M.J.L. filed a Reply which includes a formal application to terminate the current child support order effective [omitted for posting] and to cancel any arrears that have accrued since that date. [ 4 ] G.H. submits that the existing child support order should continue because S.M.H. has a significant developmental disability, is a full time student in the Education and Skills Training (“ESTR”) Program at Thompson Rivers University (“TRU”), is not capable of living independently and remains in her care. [ 5 ] M.J.L. submits that the child support order should be terminated because S.M.H. receives disability benefits and school grants, has the capacity to earn additional income and is, therefore, able to withdraw from his mother’s charge and obtain the necessaries of life.

In the alternative, if he remains liable to provide child support for S.M.H., M.J.L. submits that his child support payments should be reduced to $100 per month until S.M.H. completes his current educational program or until he turns 21. ISSUES [ 6 ] The issues are whether S.M.H. continues to meet the definition of “child” in

Part 7 of the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA ”) and, if so, whether and to what extent M.J.L. remains liable to pay child support. BACKGROUND [ 7 ] G.H. did not inform M.J.L. about S.M.H.’s birth until S.M.H. was six to nine months old. M.J.L. wanted to be involved in raising S.M.H. and, on October 30, 1996, M.J.L. obtained an interim order granting him reasonable and generous access to S.M.H. For the most part, M.J.L. spent time with S.M.H. on alternating weekends from the time he was a toddler until he was 12 years old.

Since that time, M.J.L. has had virtually no contact with S.M.H. [ 8 ] M.J.L. indicated his willingness to pay child support in his originating application and, over the years, a number of child support orders have been in place. The first child support order was made on November 6, 1996 and, as indicated above, M.J.L. has paid child support to G.H. for S.M.H. from November 1, 1996 to October 1, 2014. [ 9 ] G.H. and M.J.L. were never able to effectively co-parent S.M.H.

It was difficult for G.H. to hand her child over to a man who was a stranger to her and G.H. maintains that M.J.L. did not communicate well with her. M.J.L., on the other hand, maintains that G.H. was argumentative and that she had her friends threaten, intimidate or otherwise be rude to him. M.J.L. maintains that if he wanted to see S.M.H., he had to follow G.H.’s instructions so that is what he did. [ 10 ] M.J.L. was not very involved with S.M.H.’s schooling.

He received copies of S.M.H.’s report cards through elementary school but says that S.M.H.’s teachers brushed him off when he inquired about helping S.M.H. with his schoolwork. M.J.L. was aware that S.M.H. was struggling at school and that an Individual Education Plan (“IEP”) had been developed for S.M.H. M.J.L. says that he was unaware of the extent of S.M.H.’s developmental disability until he received a copy of a psychological assessment prepared by a school psychologist named R.W. a couple of weeks prior to the commencement of trial.

R.W.’s report is dated June 11, 2014 and I will have more to say about the report shortly. [ 11 ] S.M.H. did not testify and the evidence of the parties conflicted with respect to why S.M.H.’s relationship with M.J.L. broke down. [ 12 ] M.J.L. left me with the impression that his relationship with S.M.H. broke down because S.M.H. did not like the rules at his house. M.J.L. testified that G.H. gave S.M.H. a house-key and a cell phone and told him he could return home or call her to pick him up at any time if there were problems at M.J.L.’s home.

Whenever M.J.L. spoke to S.M.H. about rules, M.J.L. says that S.M.H. would jingle the key to his mother’s home as a sign that he could simply return to his mother’s home at any time. M.J.L. clearly felt G.H.’s actions undermined his ability to parent S.M.H. [ 13 ] G.H. testified that she wanted S.M.H. to have a good relationship with M.J.L. and did not actively undermine that relationship.

G.H. left me with the impression that she gave S.M.H. the house-key and cell phone as a concerned parent who simply wanted her son to feel safe and secure. [ 14 ] In any event, S.M.H. decided to discontinue spending time with M.J.L. soon after his 12th birthday. Since then, M.J.L. has received some photographs of S.M.H. but has only spoken over the phone with him a few times. S.M.H. initiated these telephone calls to help smooth things over when M.J.L. and G.H. were in the midst of some dispute. [ 15 ] M.J.L. says he never asked S.M.H. not to call.

M.J.L. says that his phone was always on and his door was always open. That said, M.J.L. did not indicate that he took any steps whatsoever to initiate contact with S.M.H. or to rekindle their relationship. Sadly, G.H. also appears not to have taken any steps towards promoting a reconciliation between S.M.H. and M.J.L. [ 16 ] S.M.H. was placed in a modified program at a local high school and graduated in 2014.

W.R. completed her psychological assessment just prior to S.M.H.’s graduation “to determine his level of cognitive ability and adaptive functioning.” In turn, this information “was required in order to see if he would be suitable for Community Living British Columbia (CLBC) and the Education and Skills Training Program (ESTR) at TRU.” [ 17 ] W.R.`s assessment highlights that S.M.H. is a friendly and polite young man who did reasonably well in his modified program, including during work experience placements. S.M.H. made the “Effort Honour Roll” in April 2014.

Even though S.M.H. has strengths, W.R.`s assessment makes clear that S.M.H. has a significant developmental disability. [ 18 ] S.M.H.’s Full Scale IQ is 65 which places him in the first percentile and classifies his general level of intellectual ability as being in the “Extremely Low” range. Test scores place his reading, writing and math skills at a mid-elementary level. His adaptive skills (meaning the skills necessary to meet the daily demands and expectations of his home, school or community environment) were also assessed.

Based on input from S.M.H.’s teachers, his adaptive skills were placed in the “Extremely Low” range. [ 19 ] W.R. summarized, in part, as follows: The present assessment found (S.M.H.’

s) cognitive and adaptive functioning to be in the mildly impaired range, consistent with his overall functioning in the classroom setting. These scores confirm the presence of a Developmental Disability reflecting the diagnostic criteria of the Diagnostic and Statistical Manual-Fourth Edition (DSM-IV) for Code 317. [ 20 ] I took a moment to look up “Code 17” in the DSM-IV.

It means “Mild Mental Retardation”. [ 21 ] Though W.R. indicated that S.M.H. “works well on tasks that are of interest to him” and that the ESTR Program would be a good fit for him, she also concluded that S.M.H. “will continue to require considerable guidance and support if he decides to pursue further education.” [ 22 ] It is telling that W.R. also concluded that S.M.H. “meets the eligibility criteria for services available through Community Living BC” and subsequently completed a CLBC Assessment

Summary indicating her determination that S.M.H. “meets (the) DSM-IV criteria for Mental Retardation.” Not only does S.M.H. qualify for CLBC services, he has also been designated to receive Persons with Disability (“PWD”) benefits of $906 per month through the Ministry of Social Development and Social Innovation. [ 23 ] In September 2014, S.M.H. entered the ESTR Program at TRU.

This program “provides students with cognitive disabilities knowledge about future employment opportunities and training in a specific area.” The program is a full-time, nine month program during which students divide their time between classes, labs and work placements.

The ESTR Program offers “Kitchen Assistant”, “Retail Worker” and “Automotive Assistant” programs. [ 24 ] S.M.H. received an Adult Basic Education Student Assistance Program (“ABESAP”) grant which fully covered the cost of tuition and books for S.M.H. to enrol in the ESTR Program and S.M.H. successfully completed the program in early May of this year. S.M.H. has now been accepted into a second year in the ESTR Kitchen Program which runs from September 2015 to the spring of 2016.

According to G.H., S.M.H. has applied for another ABESAP grant to cover the approximately $4,000 cost of his tuition, supplies, books and workplace clothing but S.M.H. has not heard whether he will be receiving a grant again this coming school year. [ 25 ] In terms of work experience, S.M.H. has had a number of placements through high school and through the ESTR Program, including at [omitted for posting], [omitted for posting] and [omitted for posting]. S.M.H. has also worked for his [omitted for posting] at a [omitted for posting] kitchenware store in Kelowna earning something less than $250 last Christmas.

G.H. reported that S.M.H. has done well during his work placements and that he was told by [omitted for posting] that he worked harder than their paid employees. [ 26 ] During the trial, G.H. testified that S.M.H. did not have a summer job as he has been focused more on getting through school. G.H. says that S.M.H. does not want to just “sit around” during the summer and that he may find a summer job, possibly working for his [omitted for posting] at [omitted for posting].

In the longer range, G.H. says she has been working towards S.M.H. being able to support himself, hopefully in a trade. [ 27 ] In terms of S.M.H.’s ability to care for himself, G.H. made clear that S.M.H. does not require any home care, therapy or special equipment of any kind. W.R.’s report indicates that S.M.H. “often stays home to help his mom with the housework and makes his own breakfast and lunch”. When questioned about this, G.H. said that S.M.H. helps with the laundry, takes out the garbage and can make toast and heat up a meal in the microwave.

G.H. maintains that she prepares meals for S.M.H. and is responsible for the housework. According to G.H., S.M.H. has never been left on his own. In G.H.’s view, S.M.H. would be unable to plan a budget for himself. ANALYSIS Is S.M.H. a “Child” Under

Part 7 of the FLA ?

[28] Child support is dealt with in

Part 7 of the FLA. Within that Part, s. 147(1) imposes a duty on parents to provide support fortheir children and s. 146 defines a “child” to include “a person who is 19 years of age or older and unable, because of illness, disability oranother reason to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians.” [29] There are many cases which deal with the question of when a child who reaches the age of majority remains a child eligible forchild support.

Though most of the leading cases deal with the question in the context of proceedings under the Divorce Act, R.S.C. 1985,c. 3, the language is similar and the principles remain the same under the FLA. These principles include: 1. The party seeking child support for a child who has reached 19 years of age bears the onus of proving that the child is a “child” asdefined by s. 146 of the FLA: Nitchie v. Nitchie, 2014 BCSC 468 at para. 17 and T.A.P. v. J.T.P., 2014 BCSC 2265 at para. 21); 2.

The definition of a “child” who is over 19 years of age in s. 146 of the FLA is disjunctive and, therefore, captures persons who areunable to withdraw from their parents’ charge or obtain the necessaries of life “because of illness, disability or another reason”: Briard v.Briard, 2010 BCSC 65, aff’d at 2010 BCCA 431; 3. The receipt of PWD benefits by an adult child does not absolve a family from providing financially for that child. The obligation toprovide the necessaries of life is case specific and should not be based on “poverty level necessities”: Lougheed v.

Lougheed, 2007BCCA 396 at paras 23, 25, 30 and 31; 4. Two important factors to consider in determining whether an adult child with disabilities is unable to obtain the necessaries of life arethe child’s employability and the extent of the child’s disability: H.M.R. v. D.G.R., 2010 BCSC 647 at para. 33 and T.A.P. at para. 27; 5. The concept of being within a parent’s “charge” means being in the “care”, “custody” or “responsible possession” of that parent:Briard which may include being in the financial care of that parent: Nitchie at para. 17; 6.

The pursuit of education qualifies as “another reason” which may cause a child who has reached 19 years of age to be unable towithdraw from the charge of his or her parents: Nitchie at para. 17; 7. In considering whether a child’s educational pursuits justify an adult child remaining a child for purposes of child support, thefollowing factors from Farden v.

Farden (1993), (BC SC), 48 R.F.L. (3d) 60 (BCSC) may be helpful: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college becausethere is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) 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. 8.

The “Farden factors” are of less importance when assessing an adult child with disabilities: S.M.W. v. R.E.W., 2013 BCSC 2362 atpara. 19 and T.A.P. at para. 26; and 9. An adult child’s severance of a relationship with the payor parent has reduced significance when the severance is due to the child’sdisability: T.A.P. at para. 34. [30] In this case, I have absolutely no hesitation in concluding that G.H. has met the burden of establishing that S.M.H. is a “child”as defined by s. 146 of the FLA. [31] S.M.H. has a significant developmental disability.

Though S.M.H. helps with basic household work, can “make toast andprepare meals in the microwave”, has successfully completed his first year of the ESTR program and has experienced success in variouswork placements, W.R.’s report and G.H.’s evidence satisfy me that S.M.H. does not have the skills to support himself or liveindependently.

In my view, S.M.H. is currently unable to withdraw from G.H.’s charge due to his disability. [32] While my finding that S.M.H. remains a “child” as defined in s. 146 of the FLA is based on his disability and not on his statusas a student, I note that most of the “Farden factors” support my conclusion. [33] S.M.H. is enrolled in full-time studies which are suited to his abilities and is achieving success. He has applied for and receivedfinancial assistance to cover the cost of his tuition and books.

Though he has received positive feedback at his work placements, W.R.’sassessment and his lifetime earnings of less than $250 demonstrate a limited ability to support himself through part-time employment. Finally, I do not hold S.M.H. responsible for the breakdown in his relationship with M.J.L. At the time the relationship broke down,S.M.H. functioned well below the age of 12 and lacked the intellectual ability and emotional maturity to unilaterally terminate hisrelationship with M.J.L. In my view, G.H. and M.J.L. bear the responsibility.

G.H. should have done more to encourage S.M.H. torespect M.J.L.’s rules and M.J.L. should have done more to remain an important person in S.M.H.’s life. It is very unfortunate that both

parents completely deferred to S.M.H. when his age and stage of development did not warrant that level of deference. [ 34 ] In the circumstances, I do not need to go on to consider whether S.M.H. would be able to obtain the necessaries of life if he were not in his mother’s charge and I decline to do so. Determination of Child Support [ 35 ] Section 150(1) of the FLA provides that the amount of child support must be determined in accordance with the Federal Child Support Guidelines .

Section 3(2) of the Guidelines provides as follows regarding adult children: 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. [ 36 ] The onus is on a parent who wishes to depart from the Guidelines to establish that the Guidelines would be inappropriate: T.A.P. at para. 37 . When adult children receive disability income benefits, a number of authorities support that conclusion. For example, in Senos v.

Karcz , 2014 ONCA 459 , an adult child with schizophrenia and bi-polar disorder received Ontario Disability Support Plan benefits. In concluding that a strict application of the Guidelines would be inappropriate, Strathy J.A. for the Court concluded at paragraph 58 as follows: In my respectful view, it was an error in principle to apply the Table approach. Antoni’s annual receipt of almost $10,000 in the form of ODSP income support was, in itself, sufficient to displace the “one-size-fits-most” approach in s. 3(2)(

a) of the Guidelines in favour of the “tailor made” approach in s. 3(2)(b). That approach would have regard to Antoni’s “condition, means, needs and other circumstances”. That approach is particularly appropriate in light of Antoni’s disability and society’s commitment to share in his care. [ 37 ] In view of S.M.H.’s receipt of PWD benefits, I agree with M.J.L.’s alternative submission that this is an appropriate case to depart from a strict application of the Guidelines and to establish a case-specific amount of child support under s. 3(2)(

b) of the Guidelines . I turn now to consider 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.” [ 38 ] In this case, I have already highlighted that S.M.H. has a significant developmental disability and relies heavily on his mother’s care, guidance and support. Now that S.M.H. receives PWD benefits, he is certainly able to meet some of his own financial needs. It remains to be seen whether he can maintain gainful employment to further support himself.

Supportive comments from sympathetic work placement sponsors may or may not demonstrate that S.M.H. can do so. If he does, he can retain up to $800 per month without any impact on his PWD benefits. [ 39 ] G.H. is a [omitted for posting] with [omitted for posting]. According to the information in her Financial Statement, her income for purposes of determining child support (employment income less union dues) in 2013 was $49,409 and in 2014 was $46,719.

Based on her earnings to February 26, 2015, G.H. is on track to earn approximately $55,700 for purposes of determining child support in 2015. [ 40 ] G.H. testified that she was able to meet S.M.H.’s needs on her income plus M.J.L.’s child support payments - when he was making those payments. As S.M.H.’s PWD benefits exceed M.J.L.’s child support payments (which, over the years, have generally been less than $600 per month), there is now more income entering G.H.’s home than when M.J.L. was paying child support. [ 41 ] As for M.J.L., he operates equipment at [omitted for posting].

His income fluctuates with the amount of overtime that is available and with the impact of a health condition on his ability to work. According to the information in his Financial Statement, his income for purposes of determining child support in 2013 was $61,203 and in 2014 was $71,032. Based on his earnings to February 26, 2015, M.J.L. is on track to earn approximately $74,000 for purposes of determining child support in 2015. [ 42 ] M.J.L. highlights that he is going through a divorce with a woman to whom he was married for about 18 months prior to their separation.

His ex-wife has a 16 year old daughter and M.J.L. testified that there are outstanding spousal and child support claims against him. [ 43 ] M.J.L. says any award of child support that he has to pay to G.H. will create arrears that would be “devastating” to his financial position. [ 44 ] Briard and Senos speak to the shared responsibility of parents and society to care for adults with disabilities.

In these and cases such as T.A.P. , the courts base the determination of child support for adult children with disabilities on fairly detailed budget/expense information. [ 45 ] Unfortunately, G.H., who represented herself, did not adduce detailed evidence regarding all of S.M.H.’s living expenses.

I am able, however, to extract useful information from her Financial Statement which sets out her household expenses, many of which are shared with S.M.H. or are for his benefit, and others which relate exclusively to S.M.H. [ 46 ] Shared monthly expenses include $900 for rent, $230 for telephone, T.V. and (presumably) internet and $600 for food. Monthly expenses attributable to S.M.H. alone include $80 for clothing, $20 for hair care and $80 for entertainment and recreation.

Though not detailed in G.H.’s Financial Statement, there must also be monthly expenses for toiletries, gifts and other miscellaneous items for S.M.H. As well, given S.M.H.’s computer-based interests, it is likely that an amount should be budgeted for replacement of computer and related equipment from time to time. Finally, though S.M.H. has a bus pass, G.H. leases, maintains and operates a vehicle, including for S.M.H.’s benefit.

G.H. was clear that S.M.H. has no expenses for special equipment or other aids to assist him with his disability. [ 47 ] G.H. testified that S.M.H. has been contributing about $500 per month to household expenses such as rent, utilities, food and transportation but the evidence I have outlined above satisfies me that S.M.H.’s PWD benefits do not cover all of his reasonable expenses and that G.H. continues to financially support S.M.H. [ 48 ] Child support is, of course, the right of the child.

There is no principled reason why M.J.L. should escape his duty to financially support S.M.H. nor why the household G.H. shares with S.M.H. should not be better off as a result of S.M.H.’s receipt of PWD benefits. One objective of the Guidelines is “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”: s. 1(a). One objective of PWD benefits is for society to assist people who face significant barriers to gain greater independence.

Both of these objectives can be met with an appropriate award of child support. [ 49 ] Given the uncertainties associated with M.J.L.’s employment income, I find that, as of October 1, 2014, his income for purposes of determining child support is $71,000 per year.

The Table amount of child support at this income level is $663 per month. [ 50 ] Considering S.M.H.’s condition, means, needs and other circumstances and the financial ability of G.H. and M.J.L. to contribute to S.M.H.’s support, and doing the best I can on the evidence I have, I am ordering that M.J.L. pay child support to G.H. for S.M.H. in the amount of $330 per month commencing October 1, 2014.

In my view, a reduction of roughly 50% in child support from the Table amount is appropriate and fair in all of the circumstances. [ 51 ] Taking into account what I have heard about M.J.L.’s current financial situation, I am ordering that he pay arrears at the rate of $100 per month. As well, once M.J.L. realized that he may have made a mistake in unilaterally discontinuing his child support payments to G.H., he acted reasonably quickly in applying to terminate his child support obligations.

In these circumstances and as my decision has the effect of reducing arrears which accumulated under the previous child support order, under s. 14.4(6) of the Family Maintenance Enforcement Act , RSBC 1996, c. 127, I am, cancelling the annual default fee of $400 which has been imposed by the Family Maintenance Enforcement Program. Review [ 52 ] As I look to what the future holds for S.M.H., there are many uncertainties. I expect that S.M.H. will be able to successfully complete the ESTR Kitchen Program but I do not know whether that will translate into S.M.H. being able to obtain and maintain steady employment.

If he does, I have no idea how much he will earn. I know that G.H. hopes that S.M.H. will be able to pursue a trade and live independently but I do not know whether those goals are realistic. [ 53 ] In my view, these circumstances call for a review as was ordered in T.A.P. and H.M.R. In terms of timing, in my view, the review should occur after S.M.H. turns 21. By that time, S.M.H. will have completed his ESTR Kitchen Program and have had several months to look for work. Accordingly, I am ordering that the Judicial Case Manager

schedule a review before me after October 5, 2016. To ensure that the parties and I have the necessary information, I am also ordering the parties to make financial disclosure to one another and to the court as outlined below. ORDER [ 54 ] To summarize, I make the following orders: 1. M.J.L. shall pay to G.H. the sum of $330 per month for the support of S.M.H., commencing on October 1, 2014 and continuing on the first day of each and every month thereafter, for as long as S.M.H. remains eligible for support under the Family Law Act or until further court order. 2.

M.J.L. shall pay to G.H. the sum of $100 per month towards arrears of child support, commencing August 1, 2015 and continuing on the first day of each and every month thereafter until the arrears have been paid in full. 3. The annual default fee of $400 under the Family Maintenance Enforcement Act is cancelled. 4. The Judicial Case Manager shall

schedule a two hour review of child support issues, including eligibility and quantum, before me no earlier than October 5, 2016. 5. M.J.L. and G.H. shall each complete, file with the Registry of this court and deliver to the other party a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules, including all attachments listed on page 2 of that Form by September 1, 2016. [ 55 ] Though I am not making this part of my order, I recommend that G.H. provide the court with a detailed budget concerning S.M.H.’s income and expenses when the review is held. [ 56 ] Mr. Mariona will prepare the order.

I dispense with the need for G.H. to sign the order. _________________________ L.S. Marchand Provincial Court Judge