Morandini v. Morandini

2022 BCSC 1978 Morandini v. Morandini

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Morandini v. Morandini, 2022 BCSC 1978 Date: 20221114 Docket: E153361 Registry: Vancouver Between: Gregory Martin Morandini Claimant And Michele Morandini Respondent Before: The Honourable Justice Kirchner Reasons for Judgment The Claimant, Gregory Morandini appeared on his own behalf: G.M. Morandini The Respondent, Michele Morandini appeared on her own behalf : M. Morandini Counsel for the Director of Maintenance Enforcement: P.S. Hundal Place and Date of Hearing: Vancouver, B.C. October 20, 2022 Place and Date of Judgment: Vancouver, B.C. November 14, 2022 Table of Contents Introduction.. 3 Preliminary Matters.. 3 Background.. 5 Children of the Marriage.. 8 Parties' Positions. 8 Legal Principles. 8 Analysis. 10 Makayla. 11 Mitchell 15 Cancellation of Arrears.. 19 Context: The Amount at Stake. 19 Legal Principles for Reducing Arrears. 20 Analysis. 22 The Toyota Corolla.. 24 Outstanding Section 7 Expenses.. 24 Conclusion and Orders.. 24 Introduction [1] The claimant, Gregory Morandini, applies for an order that the parties' children, Makayla and Mitchell, are no longer "children of the marriage" within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the parties' separation agreement. He further seeks an order that Makayla has not been a child of the marriage since January 2019 and that Mitchell has not been a

child of the marriage since September 2020. He seeks an order cancelling arrears of child support back to these dates. He also seeks credit towards child support arrears or section 7 expenses for a Toyota Corolla he bought for Makayla. [2] Mr. Morandini also seeks orders staying the enforcement of any child support obligations by the Family Maintenance Enforcement Program ("FMEP") pending a "fair determination" and an order that FMEP repay all monies it has collected from him together with any fees, penalties, interest, and other charges. [3] The respondent, Michele Morandini, concedes Makayla is no longer a child of the marriage but only since May 1, 2022. She maintains Mitchell is still a child of the marriage. She also claims Mr. Morandini owes her for certain special or extraordinary expenses agreed upon in the separation agreement. [4] FMEP takes no position on the substantive issues but opposes the relief seeking to stay its collection efforts or to repay what it has collected. FMEP argues that even if arrears are cancelled back to the dates Mr. Morandini proposes, he will still have a balance of arrears that FMEP should continue trying to collect. Preliminary Matters [5] Before addressing these issues, I will briefly comment on two preliminary matters, both of which appear to result from the parties now being self-represented. [6] The first is that Mr. Morandini sought a

broader order cancelling his arrears of child support on the basis that FMEP has been calculating his child support obligation using outdated income information. He asked the Court to recalculate the arrears using a substantially lower income. However, I adjourned that part of his application on the basis that he led no evidence respecting his current income, why it has dropped so substantially, and why he is not presently working. [7] The parties' separation agreement, which has been filed as an order of the court, states Mr. Morandini has an annual income of $116,000 for purposes of the Federal Child Support Guidelines, SOR/97-175. Mr. Morandini says he now earns substantially less than this. However, the separation agreement has never been varied and, while it provides for an annual adjustment of child support following an exchange of tax returns and notices of assessment by June 1 of each year, Mr. Morandini concedes the parties have never done this. [8] Thus, FMEP has been assessing Mr. Morandini's child support obligations based on the stated income of $116,000. Without an amendment to the separation agreement or a change from an annual adjustment, this is all FMEP has to work with. [9] As noted, Mr. Morandini led no evidence on this application of his current income or why it has fallen as dramatically as he claims. It appears he was on long-term disability pay for a

time and is now collecting employment insurance benefits. Ms. Morandini questions why he left his job in the first place and his apparent inability to work. I gather she would suggest the Court should impute income to him under s. 19(1) of the Guidelines as indicated in paras. 40 and 41 of her application response. [10] Given the lack of evidence on this issue, I can only proceed on the basis that Mr. Morandini's income is as stipulated in the separation agreement. If he wishes to seek a reduction in his arrears based on a reassessment of his income, he will need to bring that application back before the court with the proper evidence. It is not necessary that I be the judge to hear that application and therefore I am not seized of any such application. [11] The second preliminary matter is that while Ms. Morandini has provided a short affidavit with some exhibits, most of her factual response to this application is set out in her application response but not in the affidavit. I therefore asked Ms. Morandini to take the witness stand and adopt the contents of her application response under solemn affirmation, which she did. Mr. Morandini did not object to this procedure. [12] As I cautioned Ms. Morandini, though, adopting her application response under affirmation does not necessarily make its full contents admissible evidence. There is considerable hearsay in the document. Nevertheless, the procedure at least allowed the Court to receive her evidence in a proper form and consider it substantively: see Rule 22-1(4)(e) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 and Rahman v. Windermere Valley Property Management Ltd., 2022 BCCA 258 at para.

43. Background [13] The parties were married in 1992, separated in August 2014, and divorced in 2016. They have three children: Evan who is now 24, Makayla who is now 23, and Mitchell who is now 20. It is agreed that Evan is not a child of the marriage and has not been for some time. I am told by counsel for FMEP that none of the monies collected by FMEP relate to child support payments for Evan after he ceased to be a child of the marriage or otherwise. [14] The parties entered into a separation agreement dated September 7, 2015. Section G(a) of the agreement sets out Mr. Morandini's child support obligations as follows: Greg shall pay Michele child support in accordance with the Federal Child Support Guidelines, commencing August 1, 2015 based on his current estimated gross income of $116,000, in the amount of $2187 per month and shall continue with these bi-weekly payments hereafter until the Children are no longer children of the marriage as defined by the Divorce Act and the Family Law Act. [Emphasis added.] Thus, the separation agreement adopts the definitions of children or children of the marriage as set out in Family Law Act, S.B.C. 2011, c. 25 and the Divorce Act. [15] The Divorce Act defines "child of the marriage" as: 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; [16] Section 146 of the Family Law Act adopts substantially the same definition for the purposes of child support. [17] "Age of majority" under the Divorce Act is defined as "the age of majority as determined by the laws of the province where the child habitually resides ". In British Columbia, that is 19. [18] Section G(c) of the separation agreement states that private school tuition, tutoring expenses, sports-related expenses, and university fees, books, and associated expenses are agreed to constitute special or extraordinary expenses under s. 7 of the Guidelines. Section G(d) states the parties will equally share in those expenses. [19] Section G(d) provides for an annual adjustment of child support after an exchange of tax documents but, as noted, the parties have never done this. [20] Section G(g) states that the parties expect the children will contribute to their post-secondary education costs "in a manner that is feasible for their individual capacities and in light of the rigour of their academic program." [21] Section H(a) of the separation agreement provides that the children are deemed to be residing with Ms. Morandini, even if they are living away from home, in certain

circumstances, including: While attending an educational institution, attending: 1. on a full-time basis as defined by the educational institution; or 2. As the Child's health and cognitive capacities allow. [22] Mr. Morandini approached this application as though this provision defined whether any of the children continue to qualify as a "child of the marriage". That is, he suggested that for an adult child will qualify as a "child of the marriage" for the purposes of the separation agreement if that child is enrolled in a post-secondary education program on a full-time basis as defined by the institution. If they are not so enrolled, he suggested, they will not be children of the marriage. [23] However, that is not how the separation agreement reads. Section G(a) merely provides that a child is deemed to be living with Ms. Morandini - whether or not they actually are living with her - provided they meet one or more of the conditions set out in that section of the agreement. I gather the purpose of this section is to ensure that Ms. Morandini will continue to receive child support payments on behalf of the children even if the children are not residing with her. [24] The question of whether one or more of the children is a child of the marriage under the separation agreement is governed by the definition in the Divorce Act and Family Law Act. This means that a child could

still qualify as a child of the marriage even if not attending a "educational institution" on a full time basis provided they are otherwise "unable, by reason of illness, disability or other cause, to withdraw from their [parents'] charge or to obtain the necessaries of life". [25] At the same time, it is not inevitable that one or more of the children will continue to be a "child the marriage" for the purposes of section G(a) simply because they are attending full time at an educational institute. As I discuss below, attending post-secondary education on its own does not necessarily make a child over the age of 19 a child of the marriage. It must still be shown that the child is "unable, by reason of illness, disability or other cause, to withdraw from their [parents'] charge or to obtain the necessaries of life". Attending post-secondary education may be an "other cause", but that is not determinative. Children of the Marriage Parties' Positions [26] Both Makayla and Mitchell are adults. Mr. Morandini says neither is regularly enrolled in full-time post-secondary education and thus neither qualifies as a child of the marriage. He argues that except for a period in January through April 2022 when Makayla was enrolled in three courses at Douglas College, she ceased to be a child of the marriage by the end of 2018. He argues Mitchell has not enrolled in full-time school at all

since finishing high school and therefore ceased to be a child of the marriage in September 2020. [27] Ms. Morandini argues that despite Makayla's broken attendance in post-secondary programs, she was unable to withdraw from her parents' charge by reason of challenges she faced from a series of concussions she suffered as a child and in her teen years. She claims Mitchell has been unable to sustain full-time post secondary education because of the challenges with his hearing, Attention Deficit Hyderactivity Disorder ("ADHD"), and trying to learn in an on-line environment during parts of the COVID-19 pandemic rather than in-person classes. Legal Principles [28] In Dring v. Gheyle, 2018 BCCA 435, Justice Goepel summarized the legal principles respecting child support for adult children, including when attending post-secondary education: [49] Once a child of the relationship reaches the age of majority, the presumption is that the child is no longer a "child" and child support is no longer required. At age 19, a child is an adult who, generally speaking, must support himself or herself. To remain a "child" for support purposes, the adult child must be unable to withdraw from his or her parents' charge, or unable to obtain the necessaries of life because of illness, disability or another reason. Once a child reaches the age of majority, the party applying for child support bears

the onus of proving that the child is still a child: Olson v. Olson, 2003 ABCA 56 at para. 13. [50] If an adult child is still living at home, "but is neither ill nor disabled nor under the effect of [another reason] by which he or she is unable to withdraw from parental charge or to obtain the necessaries of life, then that adult child is no longer" a child entitled to support: Ethier v. Skrudland, 2011 SKCA 17 at para.

16. As noted in Kohan v. Kohan, 2016 ABCA 125 at para. 14, the wording "signifies something more than a mere lifestyle choice to remain dependant." [29] Justice Goepel went on to discuss the circumstances and relevant factors to consider when children over the age of majority are attending post-secondary education. As he points out, enrolment in post-secondary studies does not automatically qualify a child over the age of majority to be a child of the marriage. Rather, the court must look at the full context of the child's circumstances and it is incumbent on the parties to lead evidence of those circumstances. Goepel J.A. continued: [51] In this case, the Mother submits the Son remains a child because he is pursuing post-secondary education. It is clear that pursuit of post-secondary education may constitute "another reason" for an adult child's inability to withdraw from his or her parents' charge. In Neufeld v. Neufeld, 2005 BCCA 7, the general proposition was summarized by Justice Levine: [18] The pursuit of education necessary to equip a child with a career qualifies as "other cause" for continuing dependence of a child of or over the age of majority: Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 at 393 (C.A.). In determining whether a child pursuing an education is unable to withdraw from her parents' charge or obtain the necessaries of life a court must consider the

surrounding circumstances; mere attendance at an educational institution is not sufficient: Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) 121 at para. 17 (B.C.S.C.). [Emphasis is Goepel J.A.'s] [30] Justice Goepel then referred to the factors in Farden v. Farden (1993), 48 R.F.L. (3d) 60 at 64-65 [Farden] which provide significant guidance on what courts should consider in determining if a child attending post-secondary education is still a child of the marriage. Mr. Morandini and particularly Ms. Morandini (who has the onus of proving the children are still children of the marriage) should give careful attention to the eight factors from Farden listed below as they identify the kind of evidence needed on these applications and what is lacking in the present case: [52] In Nordeen v. Nordeen, 2013 BCCA 178, this Court discussed the circumstances in which a pursuit of education is a valid reason for continued dependence: [16] In determining whether pursuit of education is a valid reason for continued dependence, a court must consider two questions. The first is whether, considering all of the child's circumstances, the child's educational pursuits are reasonable. If they are, the court must also consider whether it is appropriate that the pursuits be financed by the parents. These questions can be complex and value-laden. In Farden v. Farden, (1993), 48 R.F.L. (3d) 60 at 64-5,

Master Joyce (as he then was) set out a list of eight factors that may assist a court in making the determinations: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college 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 studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. [17] This Court has found the Farden factors to be useful indicators in deciding whether child support should continue to be paid in respect of a child over the age of majority who is attending a post-secondary institution. [...] It must be emphasized, however, that the Farden factors are neither a checklist nor a set

of statutorily-mandated criteria. Rather, they are considerations for the court in assessing whether the child's situation is consistent with the definition of "child of the marriage" in the Divorce Act. [53] The Farden factors are equally helpful in determining whether an adult child remains a "child" within the meaning of s. 146 of the FLA. [Emphasis is Goepel J.A.'s.] Analysis [31] Neither Makayla nor Mitchell provided any evidence explaining why, despite being adults, they are or have been unable to withdraw from the charge of their parents. As noted, Ms. Morandini provided a response which she adopted under affirmation in court, but much of that is hearsay evidence about Makayla and Mitchell that really ought to have come from them directly. Makayla [32] Makayla turned 19 in April 2018. She enrolled at Langara College starting in September 2018 taking three courses in the first term, ending December 2018. Mr. Morandini concedes this meets Langara's definition of full-time study and he accepts Makayla was a child of the marriage until the end of 2018. [33] By letter dated July 10, 2018, Mr. Morandini's legal counsel wrote to Ms. Morandini's counsel advising that since Makayla was working successfully at a White Rock restaurant and at a nanny job, and without confirmation that she would be enrolling in school in the fall, Mr. Morandini considered his child support

obligations would come to an end by August 31, 2018. As I understand it, he ceased paying support for her at that time, although once FMEP became involved, it garnished child support payments from Mr. Morandini that included payments for Makayla. [34] In January 2019, Makayla enrolled in four courses at Langara but withdrew from all them. The specific reason for doing so is not in evidence other than Ms. Morandini's general assertions that Makayla has challenges with ongoing symptoms of post-concussion syndrome. [35] Makayla took no courses over the summer of 2019. She enrolled in three courses again in September 2019 but withdrew from one and did not complete another. She therefore completed only one of the three courses. [36] In January 2020, she enrolled in three courses, completed two and withdrew from one. In May 2020, she enrolled in one of the courses she had not completed earlier and passed it. In September 2020 through April 2021, she enrolled in one course each term and passed both. Ms. Morandini says Makayla was working two jobs at this time and close to 40 hours a week which exacerbated her post-concussion syndrome symptoms. She says this caused Makayla to withdraw from some courses. Ms. Morandini says Makayla had to work during this time because she was not receiving child support from Mr. Morandini. [37] Makayla took no courses over the following summer. She then

enrolled in one course at Langara in September 2021 but withdrew from that course and enrolled in two courses at Douglas College. She withdrew from one of the Douglas College courses but passed the other. In January 2022, she enrolled in three courses at Douglas College and passed all three. [38] As noted, Makayla did not provide an affidavit or any evidence explaining her circumstances or why she could not withdraw from the care of her parents before January 2019. Ms. Morandini's evidence suggests that Makayla has a poor relationship with Mr. Morandini. Her evidence also suggests that Makayla's post-concussion syndrome symptoms impeded Makayla's ability to attend school. [39] Makayla suffered a concussion at age 9 that required ongoing neurological support and rehabilitation. She suffered three more concussions at ages 11, 13, and 16 from sports-related injuries. She required some accommodations while attending high school, such as a quiet space and extra time to complete exams. I understand these accommodations were needed to manage ongoing challenges relating to the concussions. I also understand she took a reduced coarse load. [40] In November 2018, Makayla underwent a psycho-educational assessment. I understand this was requested by the parties to assess any ongoing cognitive issues arising from the concussions and what, if any, accommodations might be appropriate for

Makayla while attending post-secondary education. The assessment notes that Makayla fatigues easily and develops headaches but does not have any serious cognitive challenges. It states Makayla "continues to evidence post-concussion symptoms that are expressed through migraine headaches and extreme attentional fatigue". It states she "has clearly struggled through four significant head injuries and is working hard to overcome her post-concussion symptoms." Nevertheless, it states this with respect to her cognitive functioning and academic skills: The current testing outlined a consistent pattern of average to above-average cognitive and academic skills that are very much in line with her current functioning. The assessment process, however, is not necessarily indicative of day-to-day life as she was able to sleep in, work in a quiet setting, and take breaks as needed. [41] Despite the last qualification, and while acknowledging that Makayla continues to deal with symptoms of post-concussion syndrome, there is nothing in the assessment to suggest Makayla is unable to sustain full-time study, albeit with the recommended accommodations. Ms. Morandini acknowledges that the assessment "outlines that Makayla has no cognitive issues." [42] Despite this, Ms. Morandini asserts Makayla continues to suffer from post-concussion syndrome with a broad range of symptoms that include dizziness,

headaches, migraine headaches, lack of focus and concentration, slowness of mental and physical activity, loss of balance, depression, anxiety, insomnia, irritability, nausea, drowsiness, noise sensitivity, change in personality and a sensitivity to light. She says these symptoms affect Makayla's cognitive capacity and her ability to take more than three courses. [43] I have trouble reconciling this evidence with the assessment. The assessment refers to headaches (including migraines) and fatigue as symptoms Makayla suffers from. It makes no mention of any other symptoms on Ms. Morandini's lengthy list. Further, the assessment indicates Makayla's cognitive functioning and academic skills are average to above-average and there is no suggestion she is incapable of maintaining full-time study with accommodations. [44] If there is some discrepancy between the assessment and what Makayla actually experiences, it would have been helpful to have that evidence from Makayla herself. [45] Regardless, Ms. Morandini's evidence that Makayla's ability to take more than three courses is compromised does not explain why Makayla so infrequently enrolls in or maintains a three-coarse load. Most semesters she has enrolled or remained (after withdrawals) in less than three. The evidence does not explain why, except for the assertion it is attributable to Makayla not receiving child support. The

evidence also does not speak to her school and living expenses or her ability to contribute to those. [46] Further, the evidence suggests Makayla wishes to enter a nursing program but does not relate her current academic program to that objective or indicate how realistic this objective is given her inconsistent pattern of enrolment in post-secondary education and her academic performance. [47] Nor does the evidence explain why Makayla could not work at least on a part-time basis while attending school or consider other measures, such as student loans, to contribute to the cost of her education and living expenses while at school. In this respect, it should be recalled that the separation agreement states that it is the parties' expectation that "the Children will contribute to their post-secondary education costs in a manner that is feasible for their individual capacities and in light of the rigour of their academic program." There is no evidence Makayla's program was unusually rigorous and the psycho-educational assessment indicates Makayla has the capacity, with some accommodations, to attend school full time. [48] These are all factors suggested for consideration in Farden. [49] Ms. Morandini asserts that Makayla suffers from stress, anxiety, and, at times, depression. She attributes this to a poor relationship with Mr. Morandini and claims this is documented in

counselling records but those records are not in evidence. [50] I am not persuaded Makayla's post-concussion symptoms are so severe that they explain her pattern of post-secondary course enrolment and or her reduced course load. The psycho-educational assessment suggests her capabilities are greater than this. Ms. Morandini bears the burden of proving that Makayla continued to be a child of the marriage past the age of 19 up to May 1, 2022. She has not met that burden. [51] I also note that Ms. Morandini concedes Makayla ceased being a child of the marriage on May 1, 2022. I am not able to discern any material difference in Makayla's circumstances before or after May 1, 2022. If she is not a child of the marriage after May 1, 2022, I do not understand why things would be different before. [52] I would add that a child who has ceased to be a child of the marriage may return to that status, including by returning to post-secondary education: Hartshorne v. Hartshorne, 2010 BCCA 327 at para. 77 [Hartshorne]. If Makayla's circumstances change such that she regularly attends full-time post-secondary school, it may be that she requalifies as a child of the marriage depending on the circumstances and the Farden factors. [53] For these reasons, I find Makayla ceased to be a child of the marriage as of January 2019. Later in these reasons I will consider whether this justifies cancelling

some or all of Mr. Morandini's arrears of child support for Makayla going back to that date. First, however, I will consider Mitchell's circumstances. Mitchell [54] Mitchell completed high school in June 2020. Over the next year he worked part-time at Thrifty Foods. Ms. Morandini says he was enrolled in one course at Langara at the time but this is not verified in the school records she provided. Regardless, Mitchell was only 18 at the time and living at home with Ms. Morandini. He had not withdrawn from her charge. Thus, he continued to be a child of the marriage under para. (a) of the Divorce Act definition at least until July 2021 when he turned 19. [55] In September 2021, Mitchell enrolled in two courses at Douglas College and passed both. In January 2022, he enrolled in three courses. He then worked part-time over the summer and enrolled in three courses at Douglas College again for September 2022. [56] Ms. Morandini says Mitchell struggled with online learning during the COVID-19 pandemic restrictions. She says this, combined with a hearing impairment Mitchell has and ADHD which created a "perfect storm" that Mitchell struggled to manage. [57] In Hartshorne at para. 76, Smith J.A. stated, "It is not unusual for the courts to provide a grace period for children who have reached the age of majority and are not attending post-secondary education to make the transition to

becoming financially independent of their parent(s)". [58] I am satisfied this applies to Mitchell, at least to some extent. After Mitchell turned 19, he enrolled at Douglas College. I accept Ms. Morandini's evidence that Mitchell struggled with online learning during the pandemic, particularly since he was adjusting from in-person high school learning to less personal post-secondary learning that was made even more impersonal by the pandemic. In my view, the "grace period" described by Justice Smith in Hartshorne should be considered with some liberty during the pandemic when the post-secondary learning environment was less than ideal. [59] Mitchell is now taking three courses which Mr. Morandini accepts qualifies as full-time study under Douglas College's definition. That said, Ms. Morandini has led no evidence to explain why Mitchell is restricted to three courses and whether he can make other efforts to contribute to the cost of his education and living expenses. I accept that three courses is considered full-time study by Douglas College but that alone does not explain why Mitchell cannot also work part-time to potentially contribute to his living and education expenses. This is not only a factor to consider under Farden but also under the separation agreement. [60] The lack evidence on this point leaves the Court in a difficult position. The onus is on Ms. Morandini to

establish that Mitchell is still a child of the marriage. The fact he is attending Douglas College taking three courses militates in favour of him being a child of the marriage but I am not persuaded the three-course load leaves no room for part-time work for him to contribute to his education and living expenses. [61] In these circumstances, even if I find Mitchell is still a child of the marriage, I would find it inappropriate to apply the Guideline amount of child support pursuant to s. 3(2) of the Guidelines. I must then set an amount of child support I consider 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." The difficulty is that neither party has provided the Court with the evidence needed to assess this. [62] In Chahal v. Chahal, 2018 BCSC 964 at paras. 1260-1261, Justice Gray held that where a parent is self-represented and bears the burden of proving that an adult child is still a child of the marriage and fails to provide sufficient evidence to the court to meet that burden, it may be appropriate for the court to adjourn the application to permit the parent to obtain and provide further evidence. [63] I am satisfied that Mitchell probably still qualifies as a child of the marriage given his three-course load at Douglas College but given

the shortage of evidence I am not making that determination now. I will adjourn that part of Mr. Morandini's application on terms discussed below. For the time being, and until the issue can be determined with evidence, Mitchell will remain a child of the marriage. [64] However, I am not persuaded Mr. Morandini should continue to pay child support in the full Guideline amount - especially when Ms. Morandini has not led the evidence about why Mitchell is unable to contribute to his education costs with his three-course load. [65] Simply adjourning the application and requiring Mr. Morandini to continue paying the full Guideline amount until the application can be brought on again for hearing would be unfair to Mr. Morandini since Ms. Morandini is the one who has not led the necessary evidence. On the other hand, child support is the right of the child and it would not be fair to Mitchell to deprive him of all child support due to inadequacies in the evidence. [66] Since the evidence does not permit me to determine whether Mitchell is still a child of the marriage and, if so, what amount is reasonable for his support, I am adjourning Mr. Morandini's application for an order that Mitchell is no longer a child of the marriage to permit Ms. Morandini and Mitchell to lead the evidence on this point. Since Mr. Morandini needs to bring on his own application respecting changes to his

income, the question of whether Mitchell is still a child of the marriage and, if so, what amount of support is appropriate for him, can be determined at the same time. [67] I also order that Ms. Morandini (and Mitchell if he chooses) provide their evidence on this issue to Mr. Morandini within 30 days of the date of this judgment. They should be guided by the Farden factors, set out earlier in these reasons, for the type and kind of evidence that is needed. Mr. Morandini may renew his application for an order respecting Mitchell's status as a child of the marriage after receiving the evidence, or he may apply again if 30 days from the date of this judgment has passed and he has not received evidence from Ms. Morandini or Mitchell. [68] In the meantime, I am ordering that Mr. Morandini continue to pay child support for Mitchell but I am reducing that amount to $640 per month. This amounts to just over 60% of the Guideline amount he would have to pay based on an income of $114,000, as set out in the separation agreement. I choose 60% because it equates to Mitchell taking 60% of what is commonly considered to be a full-time course load (five courses). I recognize there is an arbitrariness to this but it is the best that can be done on the evidence before me and it is only on an interim basis until the issues of whether Mitchell is still a child of the marriage and, if so, what

amount of child support is appropriate, can be determined with proper evidence. The amount I am now ordering may be varied or cancelled all together by another judge, including retroactively, when Mr. Morandini renews his application. [69] I also order that the $640 per month be made retroactive to August 1, 2022 which is just past Mitchell's 20th birthday. This gives effect to the "grace period" discussed Hartshorne. Thus, Mr. Morandini is to be credited, by my calculation, $1,696 (being the difference between the monthly Guideline amount of $1,064 and the $640 I have ordered, multiplied by four months, being August through November). This is without prejudice to Mr. Morandini's application, which I have adjourned, to seek a further reduction in child support arrears based on his reduced income. [70] I should note that FMEP has collected $568 in each of August and September of 2022, but I assume this is applied first to his arrears and is not credited to the current payments until arrears are paid off. Cancellation of Arrears [71] Since I have found that Makayla ceased to be a child of the marriage by January 2019, I must now determine whether it is appropriate to cancel the arrears of child support for her going back to that date. Context: The Amount at Stake [72] For context, I calculate the amount at stake to be $30,080 based on the following: · Child support is calculated

on Mr. Morandini having an annual income of $114,000 pursuant to the separation agreement. · By January 1, 2019 he was paying support for only two children since Evan was no longer a child of the marriage. · On this basis, his monthly support payment for two children would have been set at $1,704 per month. · Starting January 1, 2019, he should have been paying support for just Mitchell. The monthly amount for that from January 1, 2019 to July 31, 2022 should have been $1,064 for a difference of $640 per month. · FMEP is continuing to pursue child support respecting both Makayla and Mitchell up to the time of the hearing and, I assume, beyond at the full Guideline amount. · Thus, if I were to cancel arrears of support for Makayla dating back to January 1, 2019 when she ceased to be a child of the marriage, Mr. Morandini would be entitled to a credit of $30,080 (being $640 x 47 months). · However, as I discuss below, I must consider the application of a presumptive "three-year rule" which may limit the retroactive adjustment and cancellation of arrears to three years prior to the the date of Mr. Morandini's court application which was made September 7, 2022: Colucci v. Colucci, 2021 SCC 24 at paras. 91-94 [Colucci]. If that presumptive rule applies, the arears could only be cancelled as far back as September 2019, entitling him to a credit, by my calculation, of $24,640 ($640 x

38.5 months). [73] For further context, according to FMEP's evidence, Mr. Morandini's total arrears of child support currently stand at around $80,000. Crediting him for $30,080, plus the $1,696 credit for support payments for Mitchell dating back to August 1, 2022, will reduce Mr. Morandini's outstanding arrears to just under $50,000. Crediting him for $24,640 plus the $1,696 would reduce the arrears to around $55,000. Legal Principles for Reducing Arrears [74] Section 174 of the Family Law Act permits a court to cancel some or all of a person's child support arrears where it would be "grossly unfair" not to do so. The section reads in full: 174 (1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears. (2) For the purposes of this section, the court may consider (a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (b) the reasons why the person responsible for paying support cannot pay the arrears owing, and (c) any circumstances that the court considers relevant. (3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an

order. (4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the Family Maintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [75] Courts will rarely cancel arrears and the standard of gross unfairness as set out in this section has "continuously been held to a high level.": Luney v. Luney, 2007 BCCA 567 at para. 43. [76] In Colucci at paras. 91-94 the Supreme Court of Canada affirmed a presumptive "three-year rule" to applications to retroactively decrease child support. That is, where a court finds it is appropriate to make a retroactive adjustment to child support, that adjustment may date back to when the parent seeking the adjustment gave "effective notice" of their intention to do so unless the effective notice was given more than three years prior to the formal notice. [77] Effective notice is a "clear communication" from one party to the other of a change in circumstances that may support an adjustment to child support. It must be accompanied by "reasonable proof" of the change that is sufficient for the recipient parent to independently assess the situation in a meaningful way. It must be accompanied by disclosure of relevant financial information: Colucci, paras. 6-7 and 86-90. [78] By contrast, "formal notice" is when an

application to the court is made and served on the other parent formally notifying the other parent of a court application seeking a retroactive reduction in child support. [79] Thus, where effective notice is properly given but the payor parent waits more than three years to apply to the court to vary the support order, the courts presumptively limit any retroactive change in support to three years prior to the date of formal notice unless it would be unfair to do so. Analysis [80] In the present case, I find it would be grossly unfair not to cancel the arrears of child support for Makayla. I reach this conclusion for the following reasons. a) Since I have found Makayla was not a child of the marriage after 2018, there was no legal basis for Mr. Morandini to pay child support for Makayla effective January 1, 2019. b) Mr. Morandini put Ms. Morandini on notice that he would cease making child support payments for Makayla effective August 31, 2018 and he in fact stopped making those payments. Thus, despite the fact that Mr. Morandini did not bring this application until September 7, 2022, Ms. Morandini was aware of his position. c) Mr. Morandini's legal counsel (when he had representation) persistently tried to get records of Makayla's post-secondary education to ascertain her enrolment and academic performance, as well as other factors identified in Farden. Ms. Morandini

suggests the documents had been provided but that does not appear to be the case on the evidence in this application. There is no explanation for why Ms. Morandini, or her former counsel, did not promptly provide the records Mr. Morandini was seeking. Attempting to get these documents provides some justification for delaying the application to cancel arrears. [81] Here, actual notice for this application was given in September 2022. Effective notice as it relates only to the issue of Makayla no longer being a child of the marriage was given by letter dated July 10, 2018 from Mr. Morandini's former legal counsel to Ms. Morandini's legal counsel. That letter particularizes the reasons for Mr. Morandini's assertion that Makayla was no longer a child of the marriage in terms that were sufficiently specific for Ms. Morandini to make an independent assessment of the issue. (To be clear, this letter cannot be relied upon as effective notice of a change in income for Mr. Morandini because it does not address that point.) [82] Applying the presumptive three-year rule, though, would make Mr. Morandini's retroactive adjustment effective as of September 2019. A court has discretion not to apply the three-year rule if doing so would be unfair in the circumstances. I have considered departing from the presumption in this case because Mr. Morandini was disadvantaged by not having access to

the post-secondary education records he was seeking but I have ultimately decided the evidence does not support a departure from the presumptive rule. The first record of seeking production of these documents is a letter from Mr. Morandini's legal counsel dated August 20, 2021, which is more than three years after Mr. Morandini's effective notice. The evidence does not explain what, if anything, may have occurred with the efforts to obtain documents in those three years. In the face of this gap, I am not persuaded I should depart from the three-year rule. [83] For these reasons, I order that Mr. Morandini's arrears of child support for Makayla dating back to September 7, 2019 be cancelled. I treat September 2019 as a half month since the separation agreement requires Mr. Morandini to make twice-monthly child support payments. By my calculation, this totals $24,640. [84] I also order pursuant to s. 174(4) of the Family Law Act that any interest on this amount be cancelled. I understand from Mr. Hundal, counsel for FMEP, that his office will be able to calculate this amount and, for that matter, can also verify the specific amount of arrears that should be cancelled based on the findings I have made. Since the parties themselves are self-represented, I am grateful to Mr. Hundal for offering to provide those calculations. [85] I would add that since there remains an outstanding

balance of arrears in the range of $55,000, there is no basis upon which I would stay FMEP's collection proceedings or order that it repay any amounts collected to date. The Toyota Corolla [86] Mr. Morandini also seeks credit for having purchased a 2001 Toyota Corolla for Makayla. However, this was a purchase he elected to make and it is not to be credited towards child support or section 7 expenses. This was a purchase and a gift of his choice. Outstanding Section 7 Expenses [87] Ms. Morandini seeks payment from Mr. Morandini for certain section 7 expenses she had particularized in Exhibit C to her affidavit. These total $53,827.71 and she claims half this amount from Mr. Morandini. During the hearing she conceded that Mr. Morandini had released $10,000 from the children's RESPs and, since much of these expenses are for post-secondary education, the total should be reduced to $43,827.71. Pursuant to sections. G(c) and (d) of the separation agreement, the parties agreed to share these expenses equally. [88] Mr. Morandini did not dispute that he had not paid for these items. Mr. Hundal confirmed they are not part of the arrears identified in the FMEP statement of arrears. I am satisfied Mr. Morandini has not paid his share of these expenses. [89] With one exception, Mr. Morandini did not dispute these items are section 7 expenses contemplated by the separation agreement. The one

item of dispute is $4,000 in rental assistance paid to Makayla in November 2018 and March 2019. Arguably, this rent could be an "associated expense" for university as contemplated in section G(c)(iv) of the separation agreement but I am not satisfied on the evidence that it is a true university expense the parties had agreed upon. I would therefore reduce the total expenses claimed to $39,827.71. Mr. Morandini's 50% share of that is $19,914 this amount should be added to his arrears of support. Conclusion and Orders [90] I therefore make the following orders: 1. Mr. Morandini's application to cancel or reduce his arrears of child support based on a change to his income is adjourned with liberty to bring that application on again with proper evidence of his financial circumstances. As I have said, that matter does not need to be heard by me specifically so I am not seized of that application.

2. Makayla ceased to be a child of the marriage as of January 1, 2019.

3. The application for an order that Mitchell is no longer a child of the marriage is adjourned to provide Ms. Morandini and, if he wishes, Mitchell, the opportunity to submit the evidence needed to make that determination. They have 30 days from the date of this judgment to provide that evidence to Mr. Morandini. I am also not seized of that application.

4. In the meantime, Mitchell will continue to be a child of the marriage but Mr. Morandini's child support payment is reduced to $640 per month. This order is made on an interim basis only, pending a determination of whether Mitchell is still a child of the marriage and, if so, what amount of support is appropriate having regard to his post-secondary course load, his ability to contribute to his own education and living expenses, and other factors set out in Farden.

5. Mr. Morandini is entitled to a credit for overpayment of child support for Mitchell dating back to August 1, 2022. I calculate this amount to be $1,696. This is without prejudice to any further adjustment that may be made pursuant to paras. 1 and 3 of these orders.

6. The arrears of child support for Makayla dating back to September 7, 2019, together with accumulated interest, are cancelled. To be clear, the basis for this order is that Makayla has not been a child of the marriage since that date. Mr. Morandini gave notice to Ms. Morandini in July 2018 that he would cease making child support payments for Makayla on the basis she was no longer a child of the marriage, and any delay in pursuing the cancellation of those arrears is justified by Mr. Morandini's efforts to obtain production of post-secondary school records for Makayla. I have also applied the presumptive three-year rule from Colucci. I calculate the amount of arrears to be cancelled as $24,640 plus interest. This order does not affect Mr. Morandini's right to apply for a further reduction in arrears pursuant to the order I have made under para. 1 above.

8. Mr. Morandini's application to be compensated for his purchase of the Toyota Corolla is dismissed.

9. Ms. Morandini is entitled to payment from Mr. Morandini in the amount of $19,914 for unpaid section 7 expenses.

10. Mr. Morandini's application for a stay of FMEP's collection process and to refund monies collected to date is dismissed.

11. Success on this application was divided so the parties will bear their own costs. FMEP did not seek costs. "Kirchner J."