Vavrek v Vavrek, 2023 ABKB 712

Court of King’s Bench of Alberta Citation: Vavrek v Vavrek, 2023 ABKB 712 Date: 20231219 Docket: 4804 007858 Registry: Grande Prairie Between: Bernadine Marie Vavrek Applicant - and - Darryl Kevin Vavrek Respondent Corrected judgment: A corrigendum was issued on December 19, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Justice C.D. Millsap _______________________________________________________ A. Overview

[ 1 ] The parties married on April 10, 1999 and divorced in 2007. They have two children, Rebecca, born in 2000 and Koen born in 2004, both of whom are now over the age of 18. The Divorce Judgment contained a clause requiring the parties to exchange income verification on an annual basis for so long as there continued to be a child(ren) of the marriage as defined by the Divorce Act, RSC 1985, c 3 (2nd Supp ). [ 2 ] In 2018, Bernadine commenced this action by way of a Notice to Disclose, effectively alleging that Darryl had not complied with the 2007 Divorce Judgment and Corollary Relief Order.

The litigation between the parties has continued since that time with Bernadine alleging that Darryl has failed to pay his portion of child support since the divorce and Darryl alleging that he has overpaid his obligation. Since the commencement of this action, the eldest child Rebecca has now graduated from high school and is in her 6 th year of post-secondary education. As part of the litigation over on-going and past child-support obligations it has become necessary to determine if Rebecca is currently still a “child of the marriage” and entitled to support.

This issue was severed from the child support issue and proceeded to trial on October 5, 2023. B. Issues [ 3 ] There are a number of issues that need to be determined at this juncture: 1) Is Rebecca a “child of the marriage”? 2) If she is not a child of the marriage, when did she cease to be so? 3) If she is a child of the marriage, what manner and quantum of support is she entitled to? C. Position of the Parties [ 4 ] The position of the Applicant, Bernadine, is that Rebecca is and continuously has been a child of the marriage since she graduated from high school in 2018.

The Applicant takes the position that Rebecca remains a child of the marriage because she entered into her post-secondary studies with a primary goal of becoming a veterinarian and she is currently enrolled in the Veterinary Medicine Program at the University of Calgary with an expected graduation date in 2025. [ 5 ] The Applicant states that notwithstanding the fact that Rebecca’s current program is a “post-graduate” degree, she gained early admission into the program prior to obtaining her bachelor’s degree and in accordance with the generally accepted common-law principles that differentiate the first level of post-secondary education from post-graduate programs she can be properly categorized as being in her first level of education. [ 6 ] The Respondent submits that Rebecca was a child of the marriage for her first three years of post-secondary study but ceased to be so when she moved out of her mother’s Grande Prairie residence to attend the University of Calgary’s Veterinary Medicine program in September 2021.

He states that Rebecca is able to support herself financially and is no longer under her parents’ charge. D. Analysis, Case Law and Legislation [ 7 ] It is well established that child support is the right of the child, not the recipient parent: D.B.S. v S.R.G, 2006 SCC 37 at paras 13 , 60, 131 and 169; Elliott v Elliott , 2023 ABKB 617 at para 109 . There are multiple factors that impact whether or not support is payable by a parent and what the quantum of that support will be.

At its very basic core, child support seeks to accomplish two goals; ensure the needs of the child are met regardless of which parent the child resides with and minimize the disparity between the financial resources of the child’s parents: Fedak v Mlynarski , 2020 SKQB 93 at para 35 . [ 8 ] Child support is presumptively payable until the child reaches the age of majority in the province which they live. In Alberta that age is 18 according to the Age of Majority Act , RSA 2000, c A-6 .

A child that has reached the age of majority will continue to hold the legal status of “child of the marriage” if they continue meet the definition provided in

section 2 of the Divorce Act : Child of the marriage means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) 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. The onus to prove that a child is a “child of the marriage” rests on the one seeking maintenance for a child who is over the age of 16

years (now the age of majority): Whitton v Whitton, (ON CA); Elliot v Elliot, 1993 B.C.J. No. 328 at para. 18; Ciardullo v Ciardullo, (BC SC) at para 17. [9] The important, yet not entirely clear terminology included in this

section is the use of the phrase “under their charge”.

Section 2 of the Divorce Act makes clear that a child will not be a “child of the marriage” if they are not under the charge of theparent(s), regardless of their age. [10] It is important to note that this language in the Divorce Act is a remnant of the original statute enacted in 1985 in which theuse of the term “age of majority” was not used but rather the age of 16 was the upper limit of who was automatically deemed to be a childof the marriage. The inevitable result of this statutory regime was that virtually every child still living at home with parent(

s) andattending the latter years of high school would not have been automatically captured by the definition of child of the marriage. [11] Arguably, the dynamics of a parent/child relationship will vary greatly between families such that a child “being under thecharge of” a parent will not always be easily ascertained. Typically, a child that has reached the age of majority, that is able to come andgo as they please, with no set of rules or regulations set by the parent(

s) that govern their day-to-day behaviour will not likely be “underthe charge of” the parent. This is particularly so when the child no longer resides with the parent, regardless of whether the parent stillfinancially supports the child.

Financial dependence alone does not place a child under the charge of a parent where the parent has nocontrol, input, or influence over the child: Hoadley v Hoadley, (AB KB) at para 15. [12] While the decision in Wahl v Wahl, 2000 ABQB 10 remains good law with respect to the principle that residing with a parentis not a prerequisite to being under the parent’s charge, it is difficult to envision a set of circumstances in which a child has both movedout of the parent’s home and is not bound or at least significantly influenced by parental controls but could still reasonably be said to bewithin the charge of their parent(s).

This concept is visited to a degree by the Ontario Superior Court in Menegaldo v Menegaldo 2012ONSC 2915 at para 157. [13] The university student that returns to the parent’s home in the summer, or the amateur athlete that resides with the parent intheir off-season is more likely to be said to still be their parent’s charge while living away than they would if they did not return to theparent’s home to live for a meaningful portion of the year. [14] The financial means of the child is relevant to this analysis as well, quite apart from the separate consideration of the financialmeans of the child that is to be undertaken as one of the Farden factors.

Where a child is financially independent and does not live at theparent’s home, the likelihood that they will be considered under the charge of their parents becomes remote. [15] In this case, Rebecca is 23 years old and is studying veterinary medicine at the University of Calgary. September 2023marked her sixth consecutive year of post-secondary studies. She started her education in Grande Prairie, attending the local regionalcollege while living with her mom, the Applicant.

The Respondent has conceded that she was a child of the marriage while living withthe Applicant after high school graduation from September 2018 to August 2021. [16] In August 2021 Rebecca moved to Calgary and commenced her studies in the Doctor of Veterinary Medicine program. She isscheduled to graduate from that program in April of 2025. Since leaving for Calgary, Rebecca has returned during a portion of thesummer months to Grande Prairie to live with her mom.

The fact that Rebecca has returned home to reside with the Applicant issignificant, though not determinative, of whether or not she has withdrawn from the charge of her parent(s). E. Reasons for Decision [17] Notwithstanding her age, Rebecca has not been able to withdraw from her parents charge as she remains financially dependenton them. The evidence of her financial position is not entirely clear however it appears as though her cost of living is approximately$30,000 per year.

This figure takes into account the expectation that she will not be returning to live with either of her parents nextsummer before her final year. Her income, including from grants, scholarships and loans is insufficient to support herself without someadditional assistance. [18] Rebecca is a diligent student; she has a plan for her future and she is implementing that plan quite admirably. Education isvery much an investment that is valued in society for many reasons. At the conclusion of her education, she will be well-positioned to bea contributing member of society.

It is reasonable for young, adult students to be financially supported by their parents, to some degree,

while they complete their education or non-renumerated training. [ 19 ] As endorsed by Justice Johnstone in Wahl , it is appropriate to consider the Farden factors in coming to this conclusion: 1) Rebecca is enrolled in full-time studies; 2) She has applied for and received financial assistance from parties other than her parents; 3) Her enrollment in her studies is focused on a tangible career goal; 4) She has the ability to partially finance her own education through work; 5) She is 23 years old; 6) She has demonstrated success in her academic endeavours; 7) The plans made by the parents to fund her education are unclear; 8) There is still a relationship between Rebecca and both of her parents. [ 20 ] I add to this non-exhaustive list the fact that she has spent the majority of her time off back home with her mother as well as the fact that despite her being in a post-graduate program she was able to gain admission to the program prior to completion of the normally prerequisite undergraduate degree.

It is also worth mentioning that she did not take any time off after graduating from high school, which is to say, she did not take a full year or more to build up substantial savings that would have assisted her in financing her own education. [ 21 ] I have also considered the means of the parents in this analysis. As noted previously, one goal of

section 3 child support is to ensure that there is minimal disparity between the living conditions of the payor and recipient parents. That goal does not necessarily exist where the intended beneficiary of the support is an adult student attending post-secondary education. The payor parent(

s) is expected to assist in funding the basic necessities of the student, not keeping them in the lifestyle to which they have become accustomed. [ 22 ] College is a time for book learning and life learning. The student that is requiring and entitled to parental assistance while attending college, is not entitled to live a life of luxury, regardless of the relative wealth of their parents. It is not unreasonable to expect a student to give up their expensive car in favour of bus money or to eat hamburger helper instead of filet mignon.

The support payable by the parents of a college student will rarely be required to match the support that was being provided while the student lived at home. [ 23 ] In this case, the parents have the means to assist with Rebecca’s ongoing educational costs without significantly straining limited financial resources. It is noteworthy that the Respondent Father has invested in a significant Registered Education Savings Plan for Rebecca’s benefit. It is entirely possible that the funds available to Rebecca through this RESP will more than cover any contribution that is legally required to be made by the Respondent.

F. Decision [ 24 ] I find that the evidence does establish that Rebecca remains a child of the marriage within the definition under

section 2 of the Divorce Act . I find that she remains under the charge of her parents, is unable to withdraw from their charge, and therefore is entitled to support from them. [ 25 ] As a result of the fact that she lived at her mother’s home from the time of her high school graduation until August 31, 2021, child support is payable during this period pursuant to section 3(2) (

a) of the Federal Child Support Guidelines , SOR/97-175 , in other words the applicable guideline amount. From September 1, 2021 until August 31, 2023 support is payable pursuant to section 3(2) (

b) in addition to applicable

section 7 expenses. From September 1, 2023 until April 30, 2025, further Order of this Court, or upon Rebecca’s completion of her Veterinary Medicine degree, whichever comes first, support is payable directly to Rebecca pursuant to

section 7 only. [ 26 ] It is expected that Rebecca’s reasonable expenses, including tuition, books, lab materials, transportation costs, and room and board expenses will total approximately $30,000.00 annually. It is reasonable that for the time frame of September 1, 2023 until the completion date, that Rebecca will contribute at least 50% of these costs from her employment, savings, grants, and student loans. The shortfall will be contributed to proportionately by the parents as a

section 7 expense.

[ 27 ] The support payable for the time period of September 1, 2021 until August 31, 2023 is to be calculated once the income of the Respondent during that period has been determined by Court Order following the trial of this matter. Considering the fact that Rebecca resided at her mother’s home only for a portion of this time frame, the applicable section 3(2) (

b) amount payable to the Applicant will be 50% of the guideline amount.

Section 7 expenses will be payable by each parent equally during that timeframe. If the parties cannot agree on the total

section 7 expenses for that time period further submissions can be made. It should however be noted that the purchase price of Rebecca’s vehicle is NOT an acceptable

section 7 expense, although some portion of that cost may be included in an acceptable “transportation cost” item in her annual budget. G.

Summary and Conclusion [ 28 ] The parents in this matter are in a high conflict divorce. They effectively cannot agree on whether or not the sky is blue.

This is unfortunate to say the least, but this relationship or lack thereof between the parties, in part necessitates the payment of child support directly to Rebecca, notwithstanding the fact that this type of arrangement will not always be ideal or preferred by the Courts. [ 29 ] Ideally, Rebecca will provide for her parents a proposed budget of expenses, prior to the commencement of a new school year and the Applicant and Respondent can both agree with Rebecca on how their respective contributions to her will be made.

I appreciate that the Courts have maintained that involving the child in these types of matters should be avoided. It is important to note however that in this instance Rebecca, while legally a “child of the marriage is not otherwise a child. She is well above the age of majority in this Province, maintains a good relationship with both parents, has demonstrated a high level of maturity through her excellence in her post- secondary education, and has lived out of her parents’ home for a significant period of time. [ 30 ] It is not inappropriate to involve an adult child in this process in this type of situation.

There is no reasonably foreseeable harm that can come to a 23-year-old doctorate student as a result of being required to provide a budget of expenses to her parents for the purpose of assisting them in financing her education. She does not need to be involved in the seemingly endless discord between her parents however, much like might be expected of any other college student seeking assistance form her parents she can provide her parents this information.

Further, it would seem somewhat impossible for an adult child of the marriage to obtain reasonable support from their parents if the parents are not informed by that student directly, of the costs of their education and of their ability to contribute to those costs. [ 31 ] Once Rebecca’s ongoing educational expenses are communicated to her parents, she will be reimbursed (or prepaid) for one half of those expenses directly by her parents proportionately according to the respective incomes of the parents.

In the event that the parties cannot agree on what is a reasonable living expense capable of reimbursement, they may apply to have the matter settled by the Court. Heard on the 5 th day of October, 2023. Dated at the City of Grande Prairie, Alberta this 19 th day of December, 2023. C.D. Millsap J.C.K.B.A. Appearances: Glenn Taylor for the Applicant

John D. Evans for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Justice C.D. Millsap _______________________________________________________ The years in paragraphs in 25 and 27 have been amended to reflect a change from August 31, 2022 to August 31, 2023.