J.P.S. v. K.P.P., 2023 BCPC 133

Citation: J.P.S. v. K.P.P. 2023 BCPC 133 Date: 20230614 File No: F-19002 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.P.S. APPLICANT AND: K.P.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Appearing on their own behalf: J.P.S. Appearing on their own behalf: K.P.P. Place of Hearing: Smithers , B.C. Date of Hearing: June 12, 2023 Date of Judgment: June 14, 2023

[ 1 ] J.P.S. and K.P.P. are the parents of two children: G.E.P., age 19, and K.M.P., age 15. J.P.S. and K.P.P. were married on [omitted for publication], and separated on [omitted for publication]. The parents signed a Separation Agreement on July 7, 2021. The Separation Agreement established that both parents were guardians of the children, and it set out parental responsibilities and parenting time.

Regarding child support, on page 5, the Separation Agreement called for “Regular child support payments – will be determined at a later date.” [ 2 ] J.P.S. filed an Amended Notice of Family Claim in the Smithers Registry of the Supreme Court of British Columbia on August 26, 2021, seeking to deal with child support and other issues outside the jurisdiction of the Provincial Court of British Columbia.

Due to the cost of litigating in the Supreme Court of British Columbia and to speed matters along, J.P.S. filed an Application About a Family Law Matter in the Provincial Court on January 12, 2023, seeking to deal with child support and extraordinary expenses related to the children in the Provincial Court of British Columbia. In response, K.P.P. filed a Reply To An Application About a Family Law Matter With Counter Application .

They are both self-represented in the Provincial Court of British Columbia and have agreed to have child support and extraordinary expenses dealt with in the Provincial Court of British Columbia to save time and money. [ 3 ] On June 12, 2023, the parties commenced a one-day trial before me to determine child support and extraordinary expenses. The only witnesses I heard from during the Trial were J.P.S. and K.P.P.

However, I did conduct an informal judicial interview by MS Teams videoconferencing with their daughter K.M.P. in the afternoon because parenting time and child support, as it relates to her, are contested between the parents. I conducted K.M.P.’s judicial interview without the parents, with only my court clerk and courtroom sheriff present. The judicial interview was audio recorded, but I have had the audio sealed. With K.M.P.’s permission, I provided the parents with a brief synopsis of the judicial interview. I did not hear from G.E.P.

He is attending the University of [omitted for publication] in [omitted for publication], taking pre-med courses and hoping to become a medical doctor. [ 4 ] At the core of the disagreement between the parents is who earns how much and how their respective incomes should be apportioned for child support and extraordinary expenses. The love of the children is not an issue. Both parents love their children immensely and unconditionally. Two subsets of dispute also exist between the parents: 1.

Should the parents cover all university and living expenses for G.E.P. that his First Nation does not pay for, or should G.E.P. be required to contribute towards his university education and living expenses? 2. What to do about K.M.P.

Although the parents have historically shared parenting time for the children fifty-fifty, with G.E.P. at university and K.M.P. electing at the end of 2022 to reside primarily with J.P.S., sometimes referred to in the literature as “voting with their feet,” the reality of the situation is that neither child now resides more than 40 percent of the time with K.P.P. [ 5 ] The parents entered many documents as exhibits. [ 6 ] In coming to my decision, I have reviewed and relied upon the testimony I heard in Court on June 12, 2023, as well as all exhibits tendered and the materials in the Court file, including the Financial Statement J.P.S. filed with the Court on January 12, 2023, and the Financial Statement K.P.P. filed with the Court on February 17, 2023. [ 7 ] Based upon the documentary evidence submitted, supplemented by the testimony of J.P.S. and K.P.P., I have determined that their respective incomes for child support purposes are as follows: J.P.S.

K.P.P. 2020: $81,615 $119,367 2021: $87,121 $120,487 2022: $110,881 $126,007 2023 (anticipated): $100,666 $121,954 G.E.P. [ 8 ] G.E.P. turned 19 years old on February 13, 2023. He is apparently a lovely young man and an excellent student, as evidenced by his already being in the third year of his university studies. G.E.P.’s parents expect him to complete his undergraduate degree in December 2024, and, fingers crossed, enter medical school shortly after that. [ 9 ] G.E.P. has worked the past two summers and is expected to work for wages this summer.

Nevertheless, I am told, and I accept, that the monies he makes during the summers are a pittance compared to the cost of his residing in [omitted for publication] and attending university. Accordingly, J.P.S. believes that she and K.P.P. should continue, with G.E.P.’s First Nation’s assistance, paying for G.E.P. while he attends university, both as an undergrad and continuing once he enters medical school. K.P.P., on the other hand, would

like to see G.E.P. use the summer months to work and save monies to contribute towards his education and living expenses. [10] Based upon the evidence presented, and having regard to G.E.P.’s condition, means, needs and other circumstances, includingthe financial ability of J.P.S. and K.P.P. to contribute to G.E.P.’s ongoing support, I am satisfied that G.E.P. was, at all material times,and continues to be, a “child” for purposes of

Part 7 — Maintenance and Support Obligations of the Family Law Act. Specifically, heis attending university and has not yet withdrawn from his parent’s charge. [11] In making my determination that G.E.P. is still a “child” for purposes of child support and extraordinary expenses, the relevantfactors I considered are those set out in Farden v. Farden, (BC SC), [1993] B.C.J. No. 1315 (S.C.):

a) whether the child is in fact enrol[l]ed in a course of studies and whether it is a full-time or part-time course of studies;

b) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

c) 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;

d) the ability of the child to contribute to [his] own support through part-time employment;

e) the age of the child;

f) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

g) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and

h) 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. [12] I am further guided in my determinations concerning G.E.P. by Justice Jenkins in Catallo v. Catallo, 2015 BCSC 1276, [35] Support for a child under the age of majority is determined by the presumptive rule in s. 3(1) of the Guidelines, which is theamount stipulated in the Guidelines table plus any amounts determined under s. 7 for special and extraordinary expenses. [36] Once a child has reached the age of majority, the Guidelines provides two bases on which to calculate child support: 3.

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority orover, 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. [37] The purpose of the table amount in the Guidelines is to assist the payee parent with basic costs for the children in their care, suchas food, shelter and clothing. When a child commences post-secondary education, they incur additional expenses including tuition, booksand when attending an institution away from the family home, expenses for room and board. Those expenses are contemplated in s. 7(1)(

f) of the Guidelines, which stipulates that post-secondary expenses are to be shared between the parties in a manner proportionate totheir income. When a child is attending post-secondary and living away from home, they will incur greater post-secondary expenses inpaying for residence and the costs of living, but the custodial parent no longer has to maintain the household for the child andconsequently the basic costs contemplated by the Guidelines table amount are reduced. [38] The jurisprudence has dealt with the issue in the following manner. In Neufeld v.

Neufeld, 2005 BCCA 7, the court said that for achild over the age of majority attending a post-secondary institution and living away from home, support should generally be determinedunder s. 3(2)(

b) of the Guidelines. In general, it is inappropriate, for example, to award the table amount of support and then add aproportionate share of post-secondary expenses because this approach would not take into account a proper contribution to be made bythe child through student loans and part-time work or the reduced financial burden on the custodial parent in maintaining the household. [39] In L.H.M.K. v. B.P.K., 2012 BCSC 435, Mr. Justice Brown accepted the proposition that where s. 3(2)(

b) of the Guidelines isapplied to an adult child attending post-secondary schooling who is living away from home, courts generally suspend child support forthat child when the child is away from home. In turn, courts order each party to pay their proportionate share of the child’s educationexpenses. Children have an obligation to make a reasonable contribution to their education as well: Wesemann v. Wesemann, (BC SC), [1999] B.C.J. No 1387 (S.C.) at para. 39. [13] In light of the parent’s incomes, coupled with my having determined that: i. G.E.P. meets the definition of “child,” and ii.

G.E.P. is engaged in the pursuit of education, and considering the relevant sections of the Family Law Act plus the specifics of the Separation Agreement, which states on page 6: When child support ends Child support under this agreement ends when a child becomes

• a spouse, • self-supporting, or • 18 years old. However, if a child who meets any of the conditions above cannot support themselves because of illness, disability, or the pursuit of education, the parties will review and determine·child support for that child based on the child's actual and reasonable needs and expenses, less the amount that the child can be expected to contribute to their own support.

I find that neither parent is entitled to child support for G.E.P. since their separation, as he has resided on his own in [omitted for publication] since January 2021 while attending university, plus he has split his time approximately fifty-fifty between the parents during summers. [ 14 ] Furthermore, in light of the parent’s incomes, I find that since January 2021, when G.E.P. began his studies, the parents should equally share any extraordinary expenses incurred by or on behalf of G.E.P.

Moreover, the parents should share equally all extraordinary expenses related to G.E.P. incurred between November 13, 2020, and December 31, 2020. [ 15 ] Moving forward, as long as G.E.P. is: i. enrolled full-time in post-secondary studies, ii. under the age of twenty-five, and iii. the Gitanmaax Band is contributing financially to G.E.P’s education and living expenses, the parents shall continue to equally share any extraordinary expenses incurred by or on behalf of G.E.P.

K.M.P. [ 16 ] Although K.P.P. hopes that he will be able to iron out any difficulties he is currently having with K.M.P. to have her return to residing half the time with him, it is clear to me, based upon the trial evidence and the judicial interview I conducted with K.M.P., that she has no plans to reside in her father’s home moving forward. It is not that K.M.P. does not love her father. It is abundantly clear from the judicial interview that she loves both her parents. Instead, K.M.P. does not want to live in [omitted for publication] and, as a young teenage woman, prefers staying with her mother.

Finally, tied to her desire to leave [omitted for publication] as quickly as possible, K.M.P. wants to move with J.P.S. to [omitted for publication] once her mother finds a home there. [ 17 ] K.M.P. is under 19. Thus, I must apply the Guidelines table amount in determining child support. In calculating the child support payable, I reference the income of both parents, and I determine the percentage of time spent by K.M.P. with each parent.

I am also mindful of Judge Jackson’s Interim Order made March 30, 2023, in which he ordered, [K.P.P.] will pay to [J.P.S.] the sum of $205.00 per month for the support of the children, commencing on April 1, 2023, and continuing each and every month thereafter, for as long as the children are eligible for support under the Family Law Act or until agreement or further Court Order. [ 18 ] For the year 2020, K.P.P. shall pay child support for K.M.P. to J.P.S. of $355 for December. [ 19 ] For 2021, K.P.P. shall pay child support for K.M.P. to J.P.S. of $284 per month. [ 20 ] For 2022, K.P.P. shall pay child support for K.M.P. to J.P.S. of $124 per month. [ 21 ] In recognition of the fact that since at least January 1, 2023, K.M.P. has been residing more than sixty percent of the time at her mother’s residence, commencing on January 1, 2023, and continuing each month after that for as long as K.M.P. is eligible for support under the Family Law Act or until further Court Order, K.P.P. will pay child support for K.M.P. to J.P.S. of $1,128 per month. [ 22 ] Furthermore, in light of the parent’s incomes, since November 13, 2020, the parents should equally share any extraordinary expenses incurred by or on behalf of K.M.P. [ 23 ] Moving forward, the parents shall continue to equally share any extraordinary expenses incurred by or on behalf of K.M.P. until her nineteenth birthday or as long as K.M.P. is eligible for support under the Family Law Act or until further Court Order.

Conclusion: [ 24 ] In light of my determinations above concerning extraordinary expenses for both children and child support for K.M.P., as of June 12, 2023, K.P.P. owes J.P.S., • $355 for 2020 in child support for K.M.P., • $3,408 for 2021 in child support for K.M.P., • $1,488 for 2022 in child support for K.M.P., • $8,313 ($8,928 minus the $615 already paid per Judge Jackson’s Interim Order) for 2023 in child support for K.M.P., and • $10,623.41 in extraordinary expenses concerning G.E.P. and K.M.P.

[ 25 ] Accordingly, the total monies owed by .K.P.P. to J.P.S. as of June 12, 2023, are $24,187.41. If the parents cannot devise a workable payment arrangement between themselves for the monies, they are welcome to bring the matter back before me for determination. [ 26 ] For as long as one or both of G.E.P. and K.M.P. are eligible to receive child support or extraordinary expenses, the parties shall exchange:

a) copies of their respective income tax returns for the previous year, including all attachments, not later than June 1 each year; and

b) copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency immediately upon receipt. [ 27 ] Upon exchange of their income tax returns and Notices of Assessment or Reassessment, the parties shall discuss any material change in circumstances which may warrant a change in the amount or date of child support or extraordinary expenses payable. If the parents agree to change the child support or extraordinary expenses payable, the change will be set out in a consent order and filed with the Court as set out in Rule 81.

Any changes to child support or extraordinary expenses will commence on April 1 of the year following the taxation year. [ 28 ] The subsequent Court appearance currently scheduled for July 13, 2023, at 1:30 PM at the Smithers Courthouse, is cancelled. [ 29 ] All of which is ordered this fourteenth day of June, 2023. ______________________________ The Honourable Judge D. Patterson