K.P.W. v. K.W.W. Date:, 2013 BCPC 40

Citation: K.P.W. v. K.W.W. Date: 20130228 2013 BCPC 0040 File No: F7167 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: K. P. W. APPLICANT AND: K. W. W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.J. RODGERS Appearing in person: K. P. W.

Counsel for the Respondent: K. Somerville Place of Hearing: North Vancouver, B.C. Dates of Hearing: January 8, February 18, 2013 Date of Judgment: February 28, 2013 [1] This Application is brought by Ms. W. for an Order that Mr. W. pay child maintenance and extraordinary expenses for their 21-year-old son R.(1). [2] The Ws were married in 1988 and separated in 1998. There are two children: R.(1) who was born in 1991 and R.(2) who wasborn in 1994. [3] After the parties separated, they entered into a Separation Agreement dated April 28, 2000.

The issue of child maintenance wasaddressed in paragraph 8 of the Agreement. Mr. W. agreed to pay Ms.

W. child support in accordance with the Federal Child SupportGuidelines and "in the event a child should be enrolled as a full-time student at a post-secondary educational institution the maintenanceobligations hereunder shall continue for so long as the child remains enrolled as a full-time student or until he completes his firstuniversity degree or until the child reaches the age of 23 years, whichever occurs first". [4] Post secondary tuition expenses were not specifically addressed in the Separation Agreement; however, the Agreementprovided that extraordinary expenses such as child care and medical/dental costs would be shared by the parents. [5] After graduating from high school in 2009, R.(1) enrolled at the University of British Columbia in Kelowna.

Mr. W. continuedto pay Ms. W. ongoing monthly child maintenance for R.(1) and R.(2) in the amount of $1581 per month. By a Consent Orderpronounced October 6, 2009, Mr. W. agreed to pay an extra $400 per month and Ms. W. agreed to pay $300 per month towards R.(1)’sroom and board expenses while he was attending university in Kelowna. It was further agreed that the balance of R.(1)’s room and boardexpenses would be paid from an RESP. [6] R.(1) did poorly in his first year at university. He returned to Vancouver and worked during the summer of 2010. R.(1) wentback to school in September of 2010 but Mr.

W. was unhappy with this decision. He believed that R.(1) was not committed to his studiesand therefore he did not continue paying child maintenance or university tuition for R.(1). [7] When Mr. W. stopped paying child maintenance, Ms. W. brought an Application for an Order that Mr. W. continue to paychild maintenance for R.(1) and to contribute to his educational expenses. [8] On November 2, 2010 Judge Auxier ordered Mr. W. to continue to pay Ms. W. child maintenance for R.(1) pursuant to theGuidelines.

The Court also ordered "that while R.(1) is continuing his education, K.W. shall cover the cost of his tuition and any bookexpenses from the RESP account, so long as there is monies in that fund. Once the fund is depleted he will no longer be liable to paythese expenses.” [9] Mr. W. was correct in his prediction about R.(1)’s performance at university. By the spring of 2011 R.(1) recognized he wasfailing and withdrew; thereafter R.(1) worked in the Kelowna area as a landscaper and was self-supporting. Accordingly, Mr.

W. stoppedpaying child maintenance for R.(1). [10] R.(1) decided to return to university in September of 2012 but on a part-time basis as he was permitted by the university to takeonly three courses. R.(1) did very well during this first term and he has enrolled full time for the January to May 2013 term. R.(1)'s long-term plans are to complete his undergraduate degree and take postgraduate education in architecture. [11] R.(1)'s educational expenses are approximately $3000 per semester for tuition, texts and related university expenses.

His livingexpenses are approximately $1200 per month throughout the year including rent, food, car insurance, entertainment, clothing andmiscellaneous expenses. He expects to work as a landscaper during the summer of 2013 in Kelowna and at a wage of $16/hour he shouldearn approximately $10,000. [12] Is R.(1) a “child”? The first issue for the Court is to determine whether R.(1) is still a "child" within the meaning of section 3(2) of the Federal Child Support Guidelines. Ms. W. submits that R.(1) is still a child within the meaning of section 3(2) of theGuidelines and is in need of support from his parents. Mr.

W. submits that R.(1) is no longer a child as defined by the Guidelines as hedoes not live with Ms. W. and is able to earn at least $10,000 per year. [13] The Separation Agreement clearly sets out Mr. W.'s obligations to pay child support in accordance with the Guidelines providedthat R.(1) continues as a full-time student, has not reached the age of 23 years and has not completed his first university degree. [14] R.(1) has the ability to earn approximately $10,000 during the summer vacation but this sum would not be sufficient to coverhis tuition and living expenses during the fall and spring semesters.

Even if R.(1) lived in the Vancouver area with one of his parents, hiseducational and living expenses would exceed his summer income. In the decision of Farden v. Farden (BC SC),[1993] BCJ 1315 Master Joyce (as he then was) stated as follows: 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 the circumstances. It is not a conclusion which follows automatically from proof of attendance atthe institution.

In my view the relevant circumstances include: (1) whether the child is in fact enrolled in the course of studies andwhether 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 orother 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 because 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 study; (7) what plans the parents made for the education of the 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 a relationship from the parent from whom support is sought. [ 15 ] Applying the relevant tests as set out in Farden , I find that R.(1) is enrolled in a full-time course of studies; he has a reasonable and appropriate career plan; he has the ability to contribute to his own support through part-time employment; and is now demonstrating success in his chosen course of studies.

Both Mr. and Ms. W. expected their children to attend university and R.(1) maintains a close and loving relationship with both his parents. [ 16 ] Decision Concerning Child Maintenance. I reject Mr. W.’s submission that R.(1) is living independently. I find R.(1) is a "child" in need of support and that section 3(2) of the Guidelines must be applied. In coming to this conclusion I have considered the wording of the Separation Agreement and the tests set out in Farden (op cit). [ 17 ] Based on Mr.

W.'s estimated annual income and the Guidelines, I order that commencing on January 1 st , 2013, and on the first of each and every month thereafter, Mr. W. shall pay the sum of $1722 to Ms. W. for child maintenance for both R.(2) and R.(1). Mr. W.’s obligation to pay child maintenance for R.(1) shall end when R.(1) reaches age 23, completes his undergraduate degree or withdraws from full time attendance at a post-secondary educational institution, whichever shall occur first. [ 18 ] I considered whether Mr. W.'s child maintenance payments for R.(1) should commence on September 1, 2012.

I decline to make such Order for three reasons. First, R.(1) was attending school in the fall of 2012 only on a part-time basis and could have found suitable employment to support himself. Second, the affidavit of Mr. W. deposes that he made some contributions to R.(1)'s maintenance during the fall semester. Third, R.(1) had worked during the summer and had some funds available to support himself. [ 19 ] Extraordinary Expenses : Ms. W. seeks an Order that Mr.

W. pay a proportionate share of R.(1)'s tuition and related university expenses and relies on the Separation Agreement and the provisions of section 3(2) of the Guidelines. Mr. W. submits that his obligation to pay these expenses has been extinguished by the Court Order of November 2, 2010 wherein Judge Auxier ordered " that while R.(1) is continuing his education, K. W. shall cover the cost of his tuition and any book expenses from the RESP account, so long as there is monies in that fund. Once the fund is depleted he will no longer be liable to pay these expenses .” [ 20 ] Mr.

W. testified that the RESP account is depleted and submits that, pursuant to the Order of Judge Auxier, his obligation to pay for R.(1)’s university tuition has come to an end. The Affidavit of Mr. W. sworn October 26, 2012 deposes that a total of $15,498 had been withdrawn from the RESP to pay R.(1)’s university tuition and books. [ 21 ] It is not clear from the Order of Judge Auxier whether she considered the obligations of the parties under the Separation Agreement.

Her Honour did not deliver written reasons for her Decision and the parties did not provide this Court with the transcript of her oral Decision. [ 22 ] Decision Concerning Extraordinary Expenses : I consider myself bound to follow the Decision of Judge Auxier although, with the greatest of respect, I do not agree with her Decision. The British Columbia Supreme Court in Hansard Spruce Mills [1954] DLR 590 directed that, unless there are unusual circumstances, a Judge should follow the reasoned decision of another Judge of the same Court. [ 23 ] I would have applied the Court of Appeal decision of Neufeld v.

Neufeld 2005 BCCA 7 which considered the question of child support and extraordinary expenses for a child over the age of 19 who was pursuing post-secondary education. At paragraphs 42 and 45, Levine JA said “.... in principle, support for an adult child who is entitled to child support because of his or her attendance at a post- secondary institution generally should be determined under section 3(2)(b)…. In my view, child support determined under section 3(2) (

b) does not necessarily preclude a specific award for "special and extraordinary expenses" under

section 7, where appropriate. The existence of a separation agreement that expressly deals with specific expenses may lead to such an approach." [ 24 ] There are some important factual differences between Neufeld and the case before me. In Neufeld the Separation Agreement specifically referred to tuition costs while the W.’s Separation Agreement referred only to the extraordinary expenses of day care for the children and their medical/dental costs. However, had it not been for the Decision of Her Honour Judge Auxier, I would have ordered Mr.

W. to pay 4/5 of the university tuition expenses incurred by R.(1) and Ms. W. to pay 1/5 of such expense. This apportionment is based on the annual incomes of Mr. and Ms. W. [ 25 ] DECISION : Based on Mr. W.'s estimated annual income and the Federal Child Support Guidelines, commencing on January 1, 2013 and on the first of each and every month thereafter, Mr. W. shall pay the sum of $1722 to Ms. W. for child maintenance for both R. (2) and R.(1). Mr.

W.'s obligation to pay child maintenance for R.(1) shall end when R.(1) reaches age 23, completes his undergraduate degree or withdraws from full time attendance at a post-secondary educational institution, whichever shall occur first. [ 26 ] The Application of Ms. W. for an Order that Mr. W. pay a proportionate share of R.(1)'s tuition and related university expenses is dismissed. _______________________________ The Honourable Judge W.J. Rodgers

Provincial Court of British Columbia