Tammy LOCKE Applicant And: Christopher Goulding Respondent, 2021 NLSC 8

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Locke v. Goulding , 2021 NLSC 8 Date : January 14, 2021 Docket : 200008T00851 Between: Tammy LOCKE Applicant And: Christopher Goulding Respondent Before: Justice Frances J. Knickle Place of Hearing: Wabush, Newfoundland and Labrador Dates of Hearing: November 24-25, 2020 Appearances: Tammy Locke Appearing on her own behalf Natika Hearn Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Locke v. Goulding, 2012 NLCA 8; Carpenter v. March, 2012 NLTD(F) 11; Matheson v. Matheson (2003),[2004] W.D.F.L. 52, 125 A.C.W.S. (3d) 677 (ONSC); Briard v. Briard, 2010 BCCA 431; Greening v. Mills, 2006 NLUFC 11;Steidinger v. Morrell, 2013 MBQB 143; B.G.M. v. P.G.M., 2013 ABQB 67; D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 S.C.R.231. STATUTES CONSIDERED: Federal Child Support Guidelines, S.O.R./97-175; Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Mr.

Goulding has made application to this Court to terminate his child support obligations respecting his two children,Brihanna and her twin sister, Bethany. Both children are now adults and Mr. Goulding asserts that he should no longer be obliged toprovide child support. Mr. Goulding also asserts that if child support is terminated as he requests, he should be absolved of anyoutstanding arrears and in fact he is due reimbursements for over payment of child support. Both children were born September 30,1995. [2] In relation to Bethany, there is no issue that she is no longer a child of the marriage.

Although initially Mr. Goulding sought tohave child support terminated as of her nineteenth birthday, at the time of the hearing of the application, both parties agreed that childsupport for Bethany be terminated as of the date she finished her post-secondary education. [3] Mr. Goulding has not paid child support in relation to Bethany since that time so there is no issue regarding any overpayment. [4] The situation regarding Brihanna is less straightforward. Brihanna was born with several congenital defects that result in herrequiring special care.

To complicate her circumstances, as a young child she suffered further injury due to negligence. These injuriesare permanent and have significantly complicated her care. She will never be able to live independently and requires 24 hour care. Shehas been living with her mother, Ms. Locke, and will likely continue to live with her mother indefinitely. Ms. Locke looks after many ofBrihanna’s needs. She also relies heavily on additional home care workers as well as respite workers for Brihanna’s care. [5] Caring for Brihanna is expensive.

However, upon bringing an action in negligence against those alleged responsible forcausing Brihanna’s injuries, Ms. Locke was able to secure a significant settlement on behalf of Brihanna and herself. These moniesprovide for Brihanna. [6] The monies for Brihanna, as per the Order of this Court of Hall, J., dated July 19, 2004, (Consent Exhibit # 3), were initiallymanaged by the Registrar of the Supreme Court of Newfoundland and Labrador, and are now managed by the Public Trustee.

The globalamount of the settlement was $2,040,000 of which 1.25 million was placed in a structured trust to care for Brihanna over her lifetime. [7] Mr. Goulding asserts that because of this settlement, Brihanna should no longer be considered a child of the marriage;notwithstanding her serious medical condition. Mr. Goulding now accepts that Brihanna’s disabilities mean she is unable to care forherself independently, or even contribute to caring for herself, but asserts that the monies from the settlement are able to cover all ofBrihanna’s needs. Given this, Mr.

Goulding asserts that he should no longer be obliged to provide child support. [8] Mr. Goulding further seeks repayment of all child support paid for Brihanna from the date the Court determines her no longera child of the marriage. He has asserted the termination of child support should be as of the date Brihanna turned nineteen, September 30,2014. He has calculated the child support over payment to be in the amount of $62,025.88. [9] In the alternative, Mr.

Goulding asserts that if Brihanna is deemed to still be a child of the marriage, and child support shouldcontinue, it should be at an amount that is different from the Federal Child Support Guidelines, S.O.R./97-175; Divorce Act, R.S.C.,1985, c. 3 (2nd Supp.). Given that Brihanna has the availability of the settlement monies to cover most if not all of her needs, it is unfairfor child support to continue at the amount as required by the Guidelines. Mr. Goulding raises the fact that he has two other childrenfrom his second marriage, one of whom is still a minor and for whom he must also provide.

He asserts that continuing to be required topay child support is unfair to these two other children when Brihanna already has substantial funds available. He asserts that having tocontinue to pay child support to Brihanna is causing serious financial hardship to him and his family. [10] Ms. Locke, on the other hand, asserts that child support should continue indefinitely. Ms. Locke acknowledges that thesettlement provides substantial funds for Brihanna’s care, but asserts these funds are not limitless.

She submits the intent was for thefunds to provide for Brihanna’s needs arising from the injuries incurred as a result of the medical negligence. This does not necessarilycover all of the costs incurred in looking after Brihanna. Ms. Locke asserts there are expenses incurred that are not covered by thesettlement, and that if the child support ceases these other expenses will be borne solely by her. For this reason, Brihanna should remain

a child of the marriage for the purposes of child support. [ 11 ] Ms. Locke further asserts that if Brihanna is deemed to no longer be a child of the marriage, it should be as of the date she stopped attending high school in June of 2016, not as of her nineteenth birthday, as that is the date one could have expected her to begin contributing financially to her own care, if able to so do. Ms. Locke further submits she should not be expected to pay back any overpayments of child support. This will cause her financial hardship.

Further, given the difficulties she has experienced over the years in receiving child support from Mr. Goulding, the Court should exercise its discretion to decline reimbursing Mr. Goulding for any overpayments. THE ISSUES [ 12 ] The issues to be decided in this matter are: 1) What is the date of the termination of child support for Bethany? 2) Is Brihanna still a child of the marriage? (

a) Is Brihanna capable of withdrawing from her parents’ care? 3) If Brihanna is still a child of the marriage, what is the appropriate amount of child support in the circumstances? 4) If Mr. Goulding made overpayments in child support should he be reimbursed those monies? 5) What is the effect of varying child support on arrears owing by Mr. Goulding?

ANALYSIS ISSUE 1 What is the date of the termination of child support for Bethany? [ 13 ] As explained in the introduction, the parties, to their credit, have agreed that child support is no longer owing for Bethany as of the date she completed her post secondary education, and Mr. Goulding has not been paying child support for Bethany since that time. As agreed by the parties no further child support is owing regarding Bethany as of that date.

ISSUE 2 Is Brihanna still a child of the marriage? [ 14 ] Whether or not Brihanna remains entitled to child support is governed by the Divorce Act , R.S.C. 1985, c.3 (2nd Supp .), as amended. A “child of the marriage” is defined under section 2(1) as: “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. [ 15 ] Brihanna turned 19, the age of majority in Newfoundland and Labrador, on September 30, 2015. Given this, apart from the application of section 2(1)(b), she would have been considered adult at that time. However because of her disabilities, the question is whether or not, under subsection 2(1)(b), she is “unable, by reason of illness, disability, or other cause to withdraw from their charge or to obtain the necessaries of life”. (

a) Is Brihanna capable of withdrawing from her parents care? [ 16 ] According to the evidence, despite having reached 25 years of age, Brihanna functions cognitively at the age of a young child. While there have been attempts at employment, they have not been successful. Although initially Mr. Goulding asserted that Brihanna was capable of employment, given the evidence, this argument has been abandoned. [ 17 ] A letter filed by consent at the hearing from Dr.

Price, a pediatric surgeon who has followed Brihanna since 2010, described Brihanna as follows: Brihanna Goulding is a young lady whom I have followed initially in my position as a Pediatric Surgeon since 2010. She had a complex neonatal history with a diaphragmatic hernia of Bochdalek, a neonatal gastrectomy with partial jejunoectomy and cholecystectomy all in Halifax. She has had her bowel hooked up in continuity. She has had extensive troubles with vascular access and anemia and requires iron infusion. She also has had distinct developmental and intellectual delay.

I am not a specialist in developmental pediatrics; I am not a specialist in intellect; however I am a specialist who has seen more than 40,000 children and who has followed this young lady for almost 10 years. I have been asked if she is a candidate to maintain a job. Based on my observations of her over this period of time I can

say

(1) I do not believe that she is competent to be independent and look after herself without a guardian even though she is now an adult. (2) she does not have the intellect required to do jobs with any intellectual requirement. (3) she does not have the behavioural persistence to be able to concentrate or continue at menial tasks. She would not be able to do a job that requires more than an hour of activity be it of a menial nature requiring attention. [ 18 ] Dr.

Price, in this letter, did not hold himself to be a specialist in developmental pediatrics, nor was he asked to be qualified as an expert to provide an expert opinion as to Brihanna’s mental capabilities. Given this, I must be careful as to the weight to be accorded his views insofar as he appears to have expressed an opinion. However, his knowledge and observations documented in the letter were neither contradicted or objected to by Mr. Goulding.

While not formally qualified as an expert, in light of his experience as a pediatric surgeon, and his familiarity with Brihanna in that capacity, his observations are credible and reliable evidence that assists me in determining whether or not Brihanna is capable of withdrawing from her parents’ care. [ 19 ] Further, in relation to the litigation respecting the negligence, a detailed report was prepared in 2002 to assess Brihanna’s circumstances and needs. Several experts examined Brihanna. Although dated, the report provides an in depth assessment of Brihanna at that time. Dr.

Price’s observations accord with these views (Ms. Locke testified that she did not agree with everything in this report; particularly in that its future projections for Brihanna’s ability to be employed have not come to fruition). The report was filed by consent, (Consent Exhibit #10), and provides considerable insight into the extent of Brihanna’s disabilities and capabilities. For example, the author of the report described Brihanna’s needs as “significant” and “lifelong”.

At page 13 of the report, the psychologist who conducted a number of detailed assessments summarized Brihanna: Significant delays are evident in all areas tapped in the assessment: verbal and non-verbal intelligence, fine and gross motor skills, language, activities of daily living, and socialization skills. [ 20 ] Ms. Locke also testified as to Brihanna’s care. Ms. Locke described Brihanna as “like a small child”. She still wears diapers, and needs 24 hour attention, to which Ms.

Locke contributes when care workers or respite workers are not available. [ 21 ] Brihanna’s circumstances are also well documented in the decisions arising from the plethora of litigation between the parties over the years regarding child support. In Locke v . Goulding , 2012 NLCA 8 , Hoegg, J.A., at paragraph 5, summarized the circumstances of Brihanna at that time as: …born with congenital medical problems that were aggravated in 1996 when she suffered brain damage due to the negligence of a physician. [Brihanna] is significantly and permanently disabled.

She will never be able to work or live independently, and will require constant supervision and care throughout her lifetime. [ 22 ] Given Brihanna’s circumstances, Mr. Goulding acknowledged Brihanna is not capable of making independent decisions, except at the most basic level, or being employed.

However, he asserts that the availability of the funds from the financial settlement means that Brihanna is capable of withdrawing from her parents’ charge to obtain the necessities of life and there is no need for his obligation for support to continue. [ 23 ] Courts have found in several circumstances that the availability of funds to an adult with severe disabilities, including from a settlement, can result in finding that the individual is no longer a “child”. The availability of the funds means the individual is “able to obtain the necessaries of life”. From this jurisdiction, see for example Carpenter v .

March , 2012 NLTD(F) 11 (see also, from Ontario, Matheson v. Matheson (2003), [2004] W.D.F.L. 52 , 125 A.C.W.S. (3d) 677 (ONSC) . [ 24 ] However, I do not agree with the Respondent’s submission that the case law is “clear” that where there are funds available from other sources, including the state or a settlement, as is the case here, the individual entitled to such monies will necessarily no longer be a child of the marriage. This is because whether Brihanna is still a child of the marriage is not solely a function of whether the funds provide for the child’s necessaries. [ 25 ] In Briard v.

Briard , 2010 BCCA 431 (leave to appeal to the SCC refused), the British Columbia Court of Appeal affirmed the trial judge’s finding that the individual in question, who suffered from severely disabling Down Syndrome, continued to be a “child of the marriage” notwithstanding that the child received substantial disability benefits from the Province. At paragraphs 8-9, the court agreed with the trial judge that there were two distinct basis upon which the child could be found to remain a child of the marriage.

At paragraph 9 the court stated: 9 In short, the judge held that there were two bases for a finding that a child is a "child of the marriage" under s. 2(1) (

b) of the Divorce Act when the child is under his or her parents' charge and either (

i) the child is unable, by reason of disability, to withdraw himself or herself from her parents' charge or (ii) the child is unable to obtain the necessaries of life. On the appeal, the appellant does not take issue with that

interpretation. [ 26 ] That the child may have funds available to them may be relevant to whether he or she is able to “obtain the necessaries of life”, but this is not the only basis for finding that the child is no longer a child of the marriage. [ 27 ] The reasoning in Briard supports that in those circumstances where, by reason of “illness, disability, or other cause” the child is unable to withdraw from her parent’s charge, she may still be a child of the marriage.

As stated by the trial judge in Briard , referred to at paragraphs 8 by the appeal judge, it is “ irrelevant in such a case whether the individual is otherwise able to obtain the necessaries of life ”. [ 28 ] I agree with the above reasoning (see also Greening v. Mills. , 2 006 NLUFC 11 , and the comments of Clearwater, J., in Steidinger v.

Morrell , 2013 MBQB 143 at paragraph 31 ). [ 29 ] Considering the definition of child under the Divorce Act , the reasoning in Briard , and considering the circumstances of Brihanna, of which are not in dispute, I conclude that by reason of her illness and disability, Brihanna is not “capable of withdrawing” from her parent’s care. Because of her disabilities, Brihanna will never live independently, and cannot choose to so do. This satisfies me

that she is still a child of the marriage. [ 30 ] That the funds available to Brihanna by way of the settlement might assist her in being able to obtain the necessaries of life does not mean despite her disabilities she is necessarily no longer a child of the marriage. In my view, the availability of these funds is more properly considered in determining what the appropriate level of child support should be, if any. ISSUE 3 Given that Brihanna is still a child of the marriage, what is the appropriate amount of child support in the circumstances? [ 31 ] Child support, including for persons in Brihanna’s circumstances, is governed by

section 3 of the Guidelines . Section 3(1) states states: 3

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, 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. [ 32 ] In determining the appropriate amount of child support and whether it should be the table amount in the Guidelines , the availability of the funds to Brihanna from the settlement is relevant. For example, in B.G.M. v.

P.G.M. , 2013 ABQB 67 at paragraphs 68-71 , the court considered the availability of funds to the disabled adult and found that because of the availability of this money, ordering child support at the table amount was inappropriate. [ 33 ] Similarly in Steidinger v.

Morrell , the court considered substantial funds available to a severely disabled adult in being satisfied that the table amount of child support was inappropriate. [ 34 ] In these circumstances, while I am satisfied Brihanna remains a child, I am also satisfied that the availability of funds from the settlement to Brihanna make it inappropriate to order child support at the table amount. The means, needs and circumstances of Brihanna [ 35 ] In order to determine what is appropriate then the court must examine the means, needs and circumstances of Brihanna. [ 36 ] The “means” of Brihanna come from the settlement.

The Statement of Facts from Ms. Locke, (filed as Consent Exhibit #1), states that, as part of the structured payments, Brihanna receives just under $5000 on a monthly basis. A further $400 is received monthly to cover gas for travel to and from care providers. Ms. Locke stated she also used this $400 at times, to cover hygiene products such as diapers, and food supplements. Brihanna also personally receives $100 on a bi-weekly basis which Ms.

Locke testified was used typically to buy gifts, or other small items. [ 37 ] The above funds available to Brihanna are substantial, and in fact exceed what would be required by Mr. Goulding to pay if he was ordered to pay child support at the table amount. The approximately $5000 she receives on a monthly basis, standing alone, far exceeds the approximately $760 based on his 2019 income of just over $85,000. [ 38 ] However, as stated earlier, Brihanna’s needs because of her circumstances are also substantial. Her care is expensive. According to Ms.

Locke, from the approximately $5000 received monthly, $1875 goes towards paying for childcare, babysitters and respite care. It has also been the view of not only Ms. Locke, but also that of the Public Trustee, who also testified at the hearing, that the funds available to Brihanna are not unlimited as to the purposes for which they are to be used. They are meant to cover those costs for Brihanna’s “benefit” incurred arising from the injuries suffered by Brihanna as a result of the negligence. [ 39 ] Ms. Locke testified that she does not want to exhaust the funds prematurely.

She has been cautious about seeking money from the Public Trustee, above and beyond the structured payouts, even though the Order of Hall, J. permits discretionary payments by the Public Trustee. Ms. Locke testified, and I accept her evidence, that she has been reluctant to seek payments on this basis, as she wants to ensure that the monies will be available as long as Brihanna lives.

[ 40 ] Likewise, as explained by the Public Trustee during his testimony, he is conscious that the monies need to be available for the duration of Brihanna’s life. A record of disbursements of monies from the settlement funds by the Public Trustee was filed by consent with the Court (Consent Exhibit #4). Monies that are not used from the monthly disbursements are reinvested to grow and continue the health of the funds. The Public Trustee confirmed that the payments from the settlement were structured, and so fixed as to when disbursements were made; including the monthly payments as described by Ms.

Locke, and other periodic payments that would continue as per the terms of the Order of Hall, J. [ 41 ] The Public Trustee also confirmed that under clauses (

f) and (

g) of the Order, the Public Trustee could exercise his discretion to release additional funds that were in Brihanna’s interest. Clauses (

f) and (

g) of the Order state: (

f) To pay Tammy Locke the amounts paid to the credit of B.[ sic ] on the dates set out in

schedule “A” and “B” for so long as B.[ sic ] may reside with her, subject to the Guardian in his or her discretion being satisfied that such payments are deemed necessary, appropriate and reasonable for the care and benefit of Brihanna; (

g) To advance B., B. and J. [ sic ] from time to time, such amount from the capital of, and income from, their respective settlement funds as the Guardian may deem proper; [ 42 ] The Public Trustee explained that while there was no dispute the term “reasonable care and benefit of Brihanna” in (

f) and “deemed proper” under (

g) were broad, the clauses had been interpreted to date such that it did not mean the funds were available to Brihanna for any purpose or possible need. It did not cover, for example, everyday expenses such as groceries, recreational vehicles, or vacations; although it has been used to cover the cost of travel for Brihanna’s care when Brihanna has gone on vacation. [ 43 ] Examples where the discretion had been exercised to release funds included the purchase of a vehicle so that Brihanna could be transported to and from her care, or medical appointments.

Transportation costs for the purposes of attending medical appointments have also been covered. A computer had also been purchased for Brihanna, which was not considered a regular purchase. [ 44 ] The Public Trustee explained that he was not a Guardian of Brihanna as a “person” but of her settlement funds. As long as Brihanna was considered a “child of the marriage” by the Court, in the view of the Public Trustee, everyday expenses were the obligation of her parents.

For example, while funds might be reasonably used to cover particular or special needs with respect to Brihanna’s food because of her injuries, the settlement did not as a matter of course cover Brihanna’s food. [ 45 ] The Public Trustee stated that every request could and would be assessed on a case by case basis to determine whether it was in Brihanna’s benefit and was reasonably necessary for her care.

For example while prescription glasses may not have been previously regularly covered, it would be the kind of item that might very well be covered as a reasonable expense for Brihanna’s care. [ 46 ] Counsel for Mr. Goulding pointed out to the Public Trustee that according to Consent #4, funds were released to pay for clothing for Brihanna, which appeared to be an “everyday” kind of expense.

The Public Trustee explained that he was not the person responsible for managing the funds at that time, so could not speak to any disbursements prior to him becoming Public Trustee. [ 47 ] When asked what would happen with respect to caring for Brihanna if she were to no longer live with her mother, or was found to no longer be a child of the marriage, the Public Trustee was candid that it was likely that the settlement would need to directly pay for living arrangements and for Brihanna’s “daily needs”. The extent to which such arrangements would be covered would depend on the nature of the living arrangements.

He explained, for example, if Brihanna were to live in a residential home operated by one of the provincial health boards, he anticipated that there would be an “all inclusive” rate that would cover her food and lodging, and in such circumstances, the settlement monies would likely cover that cost. [ 48 ] The Public Trustee also stated that if the Court were to find that Brihanna was no longer a child of the marriage, any issue of overpayment by the “payor” parent would be between the two parents.

His office would not directly reimburse the parent who had overpaid child support. [ 49 ] Finally with regards to the scope of discretion available to him in releasing funds to Brihanna, the Public Trustee stated that their office would take direction from the Court. [ 50 ] In

summary, Brihanna has available to her substantial funds from settlement monies, but they are not without limits both in terms of duration, and the purposes for which the monies can be used. A large portion of the monthly disbursements are consumed by the 24 hour care that Brihanna requires and other medical or living expenses. [ 51 ] I agree with Mr. Goulding that the latitude afforded the Public Trustee should permit him to disburse sufficient funds to cover most, if not all of, Brihanna’s needs. That is what the settlement is there to do, and this is a logical

interpretation of clause (f). But I also accept that there will be expenses that may not be covered by the funds. [ 52 ] Apart from these monies, Brihanna has no other means to provide for her care, and her needs far exceed those of the average adult or child. Where those needs are not covered by the settlement, it falls to the parents to make up the shortfall.

I am satisfied that notwithstanding the settlement monies, there may continue to be times when Brihanna will need this assistance. [ 53 ] While the Court was provided a detailed accounting of the monies disbursed from the settlement funds, and this provided some insight into the cost of Brihanna’s care, the Court was not provided any detailed account as to the actual costs of Brihanna’s care not covered by these funds. [ 54 ] Ms. Locke testified that Brihanna requires regularly items such as diapers.

There was no specific accounting or assessment as to the average annual cost of Brihanna’s food, clothing and lodging. Having said that there was some evidence as to Ms. Locke’s monthly expenses, discussed below. The financial ability of the parents

[ 55 ] It is also necessary to consider the ability of the parent to pay child support. Both parties have provided documentation of their incomes. In respect of Mr. Goulding, as per his Notices of Assessment and income tax returns, as well as pay stubs for 2020, since the last child support order was implemented in 2013 his income is as follows: Year Annual Income 2014 155, 590 2015 147, 221 2016 155, 363 2017 190, 263 2018 80, 516 2019 85, 951 2020 77, 893.76 (to date of hearing November 23, 2020) [ 56 ] As can be seen, Mr. Goulding’s income while significant between 2014 and 2017, has decreased since 2017.

Until 2018, his income was near or well over 150,000. He is now earning below 100,000. There is no issue that Mr. Goulding is deliberately underemployed. [ 57 ] Mr. Goulding also testified as to his current financial circumstances. Mr. Goulding stated that he is re-married and has so been for 19 years. There are two children of the marriage aged 19 and 16. The 19 year old is employed with the Canadian Armed Forces, and the 16 year old still lives at home. Mr. Goulding’s wife is employed, but there was no evidence as to her level of earnings. Mr.

Goulding, while currently employed, at the time of the hearing, did not know if his employment will continue past December, 2020. [ 58 ] Mr. Goulding testified that besides his $800 bi-weekly payment on his mortgage, he pays $400 bi-weekly on his vehicle. He testified that he is finding it difficult to manage with the continuing obligation to support Brihanna, and his newer family. He testified that there is very little left for extras. [ 59 ] In 2018, in support of his interim application to reduce the level of child support, Mr. Goulding filed a statement of his monthly living expenses.

According to that document, Mr. Goulding’s monthly expenses for 2018, including his child support obligation at just over $1100 monthly, totaled approximately $6300, or approximately $75,600 annually. Taking his incomes for 2018 and 2019, that leaves between $4700 and $10,000 disposable income available to him once he has addressed these monthly expenses; including child support. This is not a substantial disposable income, however it supports that he has been able to meet his financial obligations. I observe that Mrs.

Goulding’s income presumably adds additional funds to the family unit, which means that the amount of disposable income exceeds the above approximations. [ 60 ] In my view, given the above, Mr. Goulding has the ability to continue to pay child support to Brihanna. [ 61 ] Ms. Locke’s financial picture is as follows: Year Annual Income 2014 29,761 2015 39,134 2016 42,084 2017 44,211 2018 46,708 2019 -- 2020 50,000 (estimate) [ 62 ] Ms. Locke testified she is employed full time, and her current income is around $50,000 annually.

She stated that without continuing child support, she would find it very difficult to provide basic needs for Brihanna. She testified that Brihanna is on her medical insurance and that there are medical expenses that are not covered by the settlement. Although Ms.

Locke did not provide an accounting of the cost of care for Brihanna that is not covered by the settlements funds, she did provide an account of her monthly expenses for 2017 (Consent Exhibit #11). [ 63 ] According to this accounting, the total monthly cost of her housing, excluding her personal cell phone, is $1478.73 (mortgage $929.39, insurance $84.34, $225 for heat and electricity, $100 for repairs, and $140 for telephone, cable and internet). Ms. Locke estimated $800 a month for food, a portion of which presumably is consumed by Brihanna and $220 for gas. Ms.

Locke stated in her Statement of Facts (Consent Exhibit #1) that she receives $400 from the settlement to pay for gas to transport Brihanna. I take this to

mean that Ms. Locke expends $220 over and above the $400 she receives from the settlement for gas. While on its face, $600 a month in gas might seem substantial, I note that Ms.

Locke also stated that at times, if there were amounts leftover from the $400, she would use it to purchase diapers for Brihanna. [ 64 ] Her monthly expenses for 2017, in the column under “Children” stated $120 for clothing and footwear and $100 for “pull ups” (of which I understand to be a brand name of diapers) and “formula” (of which I understand from her testimony to mean food for Brihanna). [ 65 ] The above estimates from the 2017 monthly expenses, in my view, are costs that can be related to Brihanna’s care.

Without including the remainder of the items under her monthly expenses that might properly be considered to relate solely to Ms. Locke, these monthly living costs total $2818.73, or annually about $33,824. [ 66 ] Her total monthly expenses in 2017, adding the further expenses (excluding legal fees and employee deductions) as listed in the monthly expense form, results in an approximate total of $3675 monthly, or $44,000 annually, in expenses for Ms. Locke. According to her Notice of Assessment, Ms. Locke only earned approximately $44,000, in 2017.

Given this, and considering her salary has changed little since 2017, I am satisfied this supports Ms. Locke’s testimony that she continues to require financial assistance beyond what she currently receives from the settlement funds, to assist in caring for Brihanna. [ 67 ] Considering both parents’ financial circumstances, as well as the potential scope of the settlement funds that can be available to Brihanna, I am satisfied that the amount of child support should not be at the table amount. A generous

interpretation of the settlement funds should result in covering most of Brihanna’s needs even though she is deemed a “child”. The intention of the settlement is to provide for Brihanna’s care. If she were no longer a child of the marriage, the Public Trustee was candid that the funds would likely cover all aspects of Brihanna’s needs. [ 68 ] While I have found that Brihanna is still a child of the marriage because she is not capable of withdrawing from her parents’ care, it is so precisely because of her disabilities.

Given this, it is appropriate that the settlement funds cover those costs for Brihanna’s care to the extent they can reasonably be interpreted to be for Brihanna’s benefit, including, but not limited to, for her lodging, food and clothing. [ 69 ] Mr. Goulding’s contribution to child support for Brihanna should be linked to the expenses incurred for Brihanna’s care that are not covered by the settlement monies so that any shortfall in funds does not fall solely on the shoulders of Ms. Locke.

Similar approaches, but with slightly different outcomes, were taken in B.G.M. and Steidinger. [ 70 ] In B.G.M. , the funds available from the province did not entirely set off the expenses incurred by the disabled adult in providing for his necessities. The court ordered that any shortfall in funds available for the care of the child should be shared proportionately between the parents according to their respective incomes.

The court was able to definitively determine the shortfall, and it was then a straightforward matter to determine the appropriate apportionment between the parties. [ 71 ] In Steidinger , the Court reviewed the funds available to the child from the province and parents, and was satisfied all three should be responsible financially for the child’s care.

The court did not apportion any shortfall in the provincial funding between the parents but reduced the table amount that would otherwise be owing by the father, by one half. [ 72 ] In my view, the best approach in these circumstances, keeping in mind the objectives of the child support guideline under

section 1 to provide a fair standard in determining support, and reduce conflict between the parties, is for the parties to proportionately share according to their incomes, expenses for Brihanna’s care that are not covered by the settlement. [ 73 ] Given the broad wording of the discretion available to the Public Trustee under clauses (

f) and (g), the expenses that are not covered by the settlement should be few. The wording of the clauses 6(

f) and (

g) are broad enough that making the link between the particular expenses and the requirements of the clauses should not be onerous for the parties. For example, the estimate of Ms. Locke’s expenses of $220 per month in 2017 for “formula” and “pull ups” which are for Brihanna, may be items that could be reasonably encompassed by clauses (

f) and/or (g). [ 74 ] In practical terms, this means that Ms. Locke will prepare a budget perhaps on an annual basis of the anticipated costs she incurs for Brihanna, so that the amounts that are required to care for Brihanna can be determined. I leave it to Ms. Locke to arrange with the Public Trustee to determine how best to allocate funds for Brihanna’s care that will also cover her food, lodging and clothing, and other incidental needs. [ 75 ] Ms. Locke will also need to keep a detailed account of the monies she expends on Brihanna’s behalf that does not come from the settlement funds.

In such circumstances, Ms. Locke will forward a receipt of the expense incurred to Mr. Goulding and he will reimburse her, through the Support Enforcement Office within 30 days of receiving notification of confirmation from Ms. Locke of that expense. The parties will also need to share annually financial information, in particular their income tax returns and notices of assessment. [ 76 ] I appreciate that this approach requires the parties to continue to have to have a relationship. However both parties must understand they are bound together indefinitely by their daughter Brihanna and her circumstances.

Because the parties have not been able to come to an agreement respecting Brihanna’s care, the Court must so do. This is the fairest solution I see available to the parties, in keeping with their obligations towards Brihanna, to overcome possible shortfalls in the settlements funds available for Brihanna’s care and their respective financial abilities. [ 77 ] In conclusion, I am allowing Mr. Goulding’s application in part to vary child support. I am varying child support from the table amount as per the guidelines, commencing February 1, 2021. Commencing February 1, 2021, Mr.

Goulding is required to provide child support by reimbursing Ms. Locke for any child care expenses incurred by her for the care of Brihanna, that are not covered by the funds from the settlement, as per the Order of Hall, J. The amount that is to be reimbursed for each expense is to be in proportion to the parties’ respective annual incomes from the year previous to the expense. Unless otherwise agreed to by the parties, Mr. Goulding will

reimburse Ms. Locke within 30 days of notice of the expense incurred. ISSUE 4 If Mr. Goulding made overpayments in child support should he be reimbursed those monies? ISSUE 5 What is the effect of varying child support on arrears owing by Mr. Goulding? [78] Mr. Goulding submitted that if the Court accepted that Brihanna is an adult, he has overpaid in child support, based on the tableamounts, since she turned the age of majority on September 30, 2015. While I have not found that Brihanna is no longer a child of themarriage, I have determined that child support should not be at the table amount.

The question remains then whether that determinationshould apply retroactively to Brihanna’s circumstances at the time she turned 19. [79] It is a discretionary decision for a court to order that a variation in child support apply retroactively to the date when theopposing party had notice of the application for variation, which in this case was early January of 2016 (see D.B.S. v. S.R.G., 2006 SCC37 , [2006] 2 S.C.R. 231). [80] Ms. Locke submits that no relief should be awarded Mr.

Goulding even if the Court determines that he has overpaid childsupport in the preceding years. [81] In these circumstances, I am not applying the variation in child support retroactively. In my view, to so order would cause asubstantial hardship for Ms. Locke. Her financial means are modest. It would also be difficult to go back to January of 2016 and try todetermine to what extent the monies expended by Ms. Locke for the care of Brihanna should have come from the settlement and notchild support contributions made by Mr.

Goulding. [82] Further, in determining whether there should be retroactive application of the variation, the Court may consider the conduct ofthe parties. I accept, as submitted by Ms. Locke, that it has been a continuous struggle to receive child support from Mr. Goulding. Asthe history of this file has shown, this is not the first time Mr. Goulding has objected to having to pay child support for Brihanna, evenwhen she was under the age of majority. Since 2013, as is evidenced by the previous child support order of Goodridge, J. (as he thenwas), Mr.

Goulding was already in arrears for child support, and ordered to repay these amounts. [83] Mr. Goulding has also failed to comply with the terms of previous child support orders that have been in place in failing toprovide income information to the recalculation office. While I accept that Mr. Goulding’s failure to file his income information,according to Ms. Locke’s calculations, may have resulted in her receiving more child support in the years, 2014, 2015 and 2016, than towhich she would have otherwise been entitled, during the years 2017 onward, Mr.

Goulding has underpaid child support based on theOrder as it then stood. According to the calculations provided by Ms. Locke in Consent #1, the accuracy of which Mr. Goulding did notdispute, the difference in child support paid since 2014 between what he was obliged by Court Order to provide, and what he actuallypaid, as of the time of this hearing, Mr. Goulding was still in arrears of child support of $4,383.69. [84] I also consider that it has always been, and continues to be Ms. Locke who has been the parent caring for Brihanna.

This is nosmall undertaking, and is a burden that cannot be quantified by monetary terms. The comments of the Court in Steidinger in acceptingthat the father should no longer be obliged to pay the table amount in child support, took into account that the mother continued to carefor the child, and shouldered a burden that was difficult to quantify for the purposes of determining child support. At paragraph 33, thecourt stated: … It is not possible to determine precisely the additional cost to Ms. Steidinger of maintaining Christina in her home. The amountChristina now pays to Ms.

Steidinger is a reasonable contribution for her basic food and shelter expenses. It is not in my opinionsufficient to cover all the coasts incidental to the long term care of a child like Christina, which includes the cost of supervisingher(whether done by a parent or otherwise). Nor is it possible, in my opinion to precisely quantify all of these costs or the value of careprovided by Ms. Steidinger given her relationship with Christina.

Suffice it to say that the continuing care of a disabled child such asChristina is a significant burden. [85] Those comments are apposite here. [86] For the above reasons, in my view it would be unfair to require Ms. Locke to reimburse any potential overpayments in childsupport that might arise if this ruling were to be applied retroactively. [87] Notwithstanding that child support is varied commencing February 1, 2021 to an amount lesser than the table amounts, I alsofind that Mr. Goulding’s arrears in child support, whether as calculated by Ms. Locke, or Support Enforcement, should be forgiven.

Inso doing, I consider that Mr. Goulding brought his application to vary child support as soon as was feasible, in 2016. [88] I also take into account that for 2014, 2015 and 2016 Ms. Locke was overpaid in child support. Although she alleges she hasbeen underpaid in 2017, 2018 and 2019, this application was pending during this period. If the application had been resolved in a moretimely manner, the arrears accrued by Mr.

Goulding in these years would never have accumulated. [89] It is neither party’s fault that it has taken four years for the matter to reach a hearing, but given that I am satisfied that Mr.Goulding should no longer pay the table amount in child support, it would be unfair in these particular circumstances to require him toreimburse Ms. Locke for arrears based on those table amounts. [90] To be clear, I make no order requiring Ms. Locke to repay any child support overpayments that may have occurred during theabove period between the filing of this application and February 1, 2021. Nor is Mr.

Goulding required to pay any outstanding arrears,and all arrears, however calculated, to February 1, 2021, should be considered eliminated by this variation order.

CONCLUSION [ 91 ] In conclusion, I allow Mr. Goulding’s application for variation of child support in part. Notwithstanding that Brihanna is over the age of majority, by reason of her disabilities, she continues to be a child of the marriage, and her entitlement to child support continues, until further order of this or appropriate Court, or she is deceased. [ 92 ] Although Brihanna’s entitlement to child support continues, I am satisfied it would be inappropriate to order that it be in the amount as per the table amount. [ 93 ] Unless otherwise agreed by the parties, child support is to be paid by Mr.

Goulding as follows. [ 94 ] Commencing February 1, 2021, each party will contribute proportionally, according to their respective annual incomes, using the annual income in the calendar year previous to the date the expense was incurred, to any and all expenses, including special expenses, incurred for Brihanna’s care that are not covered by the Order of Hall, J., dated July 19, 2004. [ 95 ] Unless otherwise agreed to by the parties, Mr. Goulding will reimburse Ms. Locke within 30 days of notice of the expense. [ 96 ] In determining which expenses for Brihanna’s care are covered by the Order of Hall, J., Ms.

Locke will consult with the Public Trustee to determine the expenses that are appropriate and consistent with the terms of the Order, including whether expenses for Brihanna’s shelter or lodging, food, and clothing and any expenses that have previously been considered a “special expense”, as defined under the Divorce Act and regulations, should be covered. [ 97 ] The parties shall exchange their financial information for the previous year, as soon as such is available, and this Order will be subject to Support Enforcement. [ 98 ] Any and all previous Child Support Orders are hereby terminated, including any orders regarding special expenses, and all previous orders regarding Brihanna’s sister Bethany. [ 99 ] The application by Mr.

Goulding for an order that Ms. Locke repay overpayments in child support as a result of allowing his application to vary child support is dismissed. Any outstanding arrears in child support are vitiated by this variation. [ 100 ] The parties having mixed results there shall be no order as to costs. _____________________________ Frances J. Knickle Justice