Neilson v. Neilson

2012 BCSC 2225 Neilson v. Neilson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Neilson v. Neilson, 2012 BCSC 2225 Date: 20121011 Docket: E34798 Registry: New Westminster Between: Angela Dina Neilson Claimant And James Bruce Neilson Respondent Before: The Honourable Madam Justice Ker Oral Reasons for Judgment In Chambers Counsel for the Applicant: K. Wince Counsel for the Respondent: In Person Place and Date of Hearing: New Westminster, B.C. September 26, 2012 Place and Date of Judgment: New Westminster, B.C. October 11, 2012 Introduction [1] THE COURT: By notice of application filed June 13, 2012, the claimant, Angela Dina Neilson, seeks a retroactive variation of child support previously covered by a Separation Agreement entered into by the parties on November 5, 2008. [2] The basis for this application is the material change in income of the respondent, James Bruce Neilson, since the Separation Agreement and more particularly a significant increase in income in the years 2010, 2011 and anticipated for 2012. [3] The claimant also seeks a determination of the arrears of child support owed by the respondent to the claimant for the years 2010 and 2011 in light of the respondent's increased income, and a prospective order for child support for 2012 effective October 1, 2012. [4] The claimant seeks an exchange of financial information annually to ensure a review of incomes to determine whether child support

should be varied depending on the respondent's income. [5] The claimant also seeks orders for payment of retroactive special or extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, SOR/97-175 [Guidelines] from 2008 to present, and a companion order that the respondent pay the claimant s. 7 special and extraordinary expenses on a prospective basis. [6] The claimant further seeks an order under s. 92 of the Family Relations Act, R.S.B.C. 1996, c. 128 that the respondent pay up to $5,000 to the claimant due to the respondent's failure to comply with the rules respecting financial disclosure. [7] The respondent resisted the claimant's application but primarily on the issue of the s. 7 expenses and the penalty for failing to provide financial disclosure. The respondent acknowledged that his Guidelines income for the purposes of reviewing and assessing his child support obligations for 2010 and 2011 are as set out in the claimant's second affidavit of September 14, 2012 and supported by his 2010 and 2011 Notice of Assessment that he has provided to the claimant's counsel in partial compliance of Madam Justice Arnold-Bailey's order of July 23, 2012. [8] At the commencement of this application, the respondent sought an adjournment of the hearing of the application, arguing he had had insufficient notice or time to respond to the application. I denied the

adjournment application as the respondent has been on notice of this application since it was served on him in mid-June 2012 and he had already obtained one previous adjournment of the application on July 23, 2012 when he indicated to the Court at that time that he needed to retain counsel to assist him. [9] On July 23, 2012, Madam Justice Arnold Bailey granted the respondent's application to adjourn the claimant's application but did so on terms applicable to the respondent. The respondent has not fully complied with those terms relating to financial disclosure. He filed no materials or response to the application when it originally came on for hearing on July 23, 2012. He has not retained a lawyer and still has provided no responding materials despite having a sufficient period of time to do so. The respondent's current adjournment application appears to be nothing more than a delay tactic. No materials were provided to support the respondent's position either for an adjournment or to determine that there is any other evidence to consider on the claimant's application than what is currently before the Court. [10] With those introductory comments in mind, I turn now to the background facts. Background Facts [11] The claimant and respondent were married on July 29, 1989 and separated first in 2005 when the first Separation Agreement was drafted and then reconciled. The final

separation occurred on August 25, 2008. A second Separation Agreement was entered into on November 5, 2008. That Separation Agreement was filed with the Court on March 1, 2010. Both parties were represented by counsel at that time. A divorce order was granted September 20, 2010 and it took effect 31 days later. [12] The parties have three children from their marriage: Alicia, born in July 1990 and now 22 years old; Jennifer, born in January 1992 and now 20 years old; and Jessica born in August 1997 and now 15 years old. [13] Pursuant to the terms of the 2008 Separation Agreement, the parties share joint custody and guardianship of the children with the claimant having primary residence. [14] At the time of the Separation Agreement, the respondent had a Guidelines income of $54,034.05 which yielded a child support payment for the three children in the amount of $1,070 a month pursuant to the Guidelines. The parties also agreed in the Separation Agreement to equally share the s. 7 special and extraordinary expenses for the children of the marriage and in particular, medical expenses, daycare costs, and any reasonable sporting activities as discussed and agreed upon by the parties in advance in writing. [15] The Separation Agreement does not appear to contain any clause requiring an exchange of financial information, in particular, income tax returns with supporting attachments.

However, payor parents have an ongoing obligation to keep the recipient parent advised of changes in income so that the appropriate table amount of child support as delineated by the Guidelines is paid for the children of the marriage. [16] As of November 4, 2011, the respondent has been on notice that the claimant was seeking updated financial information for the purpose of determining the appropriate amount of child support payable commensurate with the respondent's income. The respondent needs to understand that child support is the right of the child and he has an obligation to support his children in accordance with his financial means. [17] On July 23, 2012, the claimant's application was adjourned by Madam Justice Arnold-Bailey on the following terms: 1. The respondent will provide to counsel for the claimant the following documents on or before August 17, 2012: i. His complete filed tax returns for 2009, 2010, and 2011; ii. His Notices of Assessment for 2009, 2010, and 2011; iii. His latest six pay stubs.

2. The respondent will pay to the claimant $500 forthwith for today's court appearance.

3. The application of the claimant filed June 13, 2012 is adjourned generally, with leave to reset the application upon 5 days' notice if a date cannot be agreed upon. [18] The respondent has only partially complied with that order in that he has only provided his Notice of Assessment for 2010 and 2011 and his last six pay stubs ending July 21, 2012. He has not provided a copy of his complete tax returns for 2009, 2010 or 2011 although he has provided an income tax summary for 2011. He has failed to provide his 2009 Notice of Assessment. [19] In submissions, the respondent indicated that the Canada Revenue Agency will not provide him with a full copy of his tax returns although no letter or documentation was provided to support this rather unusual claim. It is the Court's experience that such documents will be provided when requested, although there may now be a fee associated with such a request. [20] No explanation has been provided for the failure to provide the 2009 Notice of Assessment. The respondent claims he only made approximately $25,000 in 2009 but has failed to provide any support for such a claim. The 2009 Notice of Assessment is an easily producible document and I infer that what it might disclose may not support the respondent's assertion of overpaying support in 2009. [21] The respondent is a longshoreman with the Deltaport Docks and also, at least up until

recently, worked at Brewers Distributor Ltd. His 2011 T4 for his longshoreman position indicates he earned $84,478.43 last year and his T4 for Brewers Distributor Ltd. shows an employment income of $8,305 for 2011. Clearly, the bulk of his income is earned through his longshoreman position and he is capable of earning up to $91,533 a year after deductions are made for union dues. [22] The claimant is a registered nurse and has been for many years. In her second affidavit filed in this application, she deposes an income of $100,000 for 2008, 2011 and 2012, more for 2009 and less for 2010. [23] What the evidence before me does disclose is the following: (a) In 2010, the respondent had a Guidelines income of $65,270 which results in a basic child support payment of $1,286 a month. (b) In 2011, the respondent had a Guidelines income of $91,533 which results in a basic child support payment of $1,735 a month. [24] As of his September 8, 2012 pay stub from his work as a longshoreman, the respondent had a year-to-date gross income of $67,322.45. His previous six pay stubs do indeed show fluctuations in his hours of work but only in a minor amount. While the respondent may not work quite as many hours in 2012, particularly if it is correct that he no longer works for Brewers Distributor Ltd., I do not see that his income will necessarily deviate too significantly from what he is

currently earning and has earned in 2011. [25] In any event, his Guidelines income for 2012 can be reviewed in 2013 when his full tax return information is provided and the parties are in a position to assess and adjust the child support payable at that time. For the purposes of this application we can only work on the 2011 Guidelines income figure of $91,533 for 2012, which results in a basic child support payment of $1,778 a month given the change to the Guidelines table amounts in 2012. [26] The respondent has been paying $1,070 a month pursuant to the Separation Agreement. In 2010 and 2011, he paid a total of $12,840 in child support for those years. In 2010, he should have paid $15,432 in child support for that year, representing a shortfall of $2,592 in child support for 2010. In 2011, he paid $12,840 but should have paid $20,820 for that year, representing a shortfall of $7,980 in child support for 2011. In 2012, he has paid nine months' child support at $1,070 which totals $9,630. Based on a Guidelines income of $91,533 he should have been paying $1,778 a month for three children, which would constitute $16,002 to the end of September 2012, thus a shortfall of $6,372. [27] The claimant argues the total shortfall or arrears for child support then would be $16,944 owing by the respondent to the claimant that should have been paid in 2010, 2011 and up through September 30,

2012. [28] Before making any finding that that is indeed the amount owing, it is first incumbent on the Court to determine whether Alicia, who is 22, and Jennifer, who is 20, are in fact still children of the marriage and if so whether the Guidelines table amount of support is appropriate for their circumstances. [29] Clearly, Jessica at age 15 is a child of the marriage and the respondent would owe child support for Jessica alone at the enhanced rate commensurate with the Guidelines income I have previously set out for the respondent for 2010 and 2011. [30] I turn now to a brief summary to the circumstances of Alicia and Jennifer. Alicia's Circumstances [31] Alicia is now 22 years old. She turned 19 in July 2009. She has attended post-secondary school full-time since her graduation from high school. She has completed an undergraduate degree in psychology and is continuing her studies to obtain a Bachelor of Social Work from the Nicola Valley Institute of Technology located in Merritt, B.C. [32] Alicia has worked part-time in the restaurant industry earning -- according to the relevant Notice of Assessment tax documents -- a line 150 income of $7,617 in 2009, $10,563 in 2010, and $8,019 in 2011. [33] The claimant's first affidavit filed on this application attaches numerous receipts for the medical and dental expenses as well as the school fees, sporting activities, and

post-secondary tuition and textbooks that she has personally paid for all three children since 2008. They total over $46,000. [34] Despite numerous requests and demands that the respondent contribute his equal share towards these costs as outlined in the Separation Agreement, the respondent has not done so. [35] In her second affidavit filed on this application, the claimant has provided a breakdown of the s. 7 special and extraordinary expenses incurred for each child between 2008 and 2011. [36] Insofar as Alicia's post-secondary tuition and textbook expenses are concerned, the total amount expended by the claimant between 2008 and 2011 is $9,436.56. I accept the evidence in her two affidavits as to the accuracy of these amounts and at para. 22 of her second affidavit the claimant has provided a chart breaking down the total expense and attributing it to each year. Based on the relatively modest amounts for each year, it is reasonable to infer that Alicia is also contributing to her expenses by means of employment income, loans or scholarships. Jennifer's Circumstances [37] Jennifer is now 20 years old. She turned 19 in January 2011. Upon graduating from high school, Jennifer commenced full-time studies at Simon Fraser University and had the benefit of a partial volleyball scholarship. [38] In May 2011, Jennifer transferred to the University of Toronto where she continues to

play volleyball. She is in a four-year education program, studying to obtain a Bachelor's Degree in Physical and Health Education which she started in September 2010. [39] Like her older sister, Jennifer also works part-time. She is limited in the school year to 12 hours a week where she works as a referee. In 2010, Jennifer's line 150 income from part-time employment as outlined in her Notice of Assessment was $5,081 and was $7,965 for 2011. [40] For her education expenses, Jennifer receives a scholarship of $1,500 a semester from the University of Toronto. In addition, she obtained student loans which, in 2011, amounted to $5,901. [41] The s. 7 special and extraordinary expenses the claimant has incurred for Jennifer for post-secondary tuition and textbook expenses for 2010 and 2011 totals $9,002.34 and an additional $2,227.36 for Jennifer's move to attend school in Toronto in 2011, bringing her total s. 7 special and extraordinary expenses as related to post-secondary education to $11,229.60 for 2010 and 2011. Jessica's Circumstances [42] I propose to briefly address Jessica's circumstances insofar as the s. 7 special and extraordinary expenses claim being advanced by the claimant is concerned. [43] It is clear that Jessica remains a child of the marriage and the respondent is obliged to pay support for Jessica under the table amounts outlined by the Guidelines. [44] Jessica

is currently 15 years old, living at home with the claimant and attending high school. School fees related to Jessica's high school education for 2010 and 2011 total $320. Based on the terms of the Separation Agreement, the respondent agreed to pay 50 percent of those costs and so owes the claimant $160 for Jessica's school fees. [45] Insofar as Jennifer and Jessica are concerned, it appears both girls play volleyball as their sport of choice. It is unclear what level they are playing at. The claimant seeks a declaration that the respondent owes her either 50 percent of the cost of Jennifer and Jessica's sporting activities or his proportionate share of the total of $6,480.58 accumulated between 2008 and 2012. There is however no evidence that, as required by the 2008 Separation Agreement, the sporting activities were discussed and agreed upon by the parties in advance in writing. [46] Although the respondent has proffered no materials on this application, the claimant's counsel properly acknowledged there is nothing in writing to evidence an agreement to incur the expenses of any reasonable sporting activities. Consequently, this limited aspect of the claimant's application, that is, retroactive reimbursement for s. 7 expenses incurred for the sporting activities of Jennifer and Jessica between 2010 and now is not allowed. [47] The claimant seeks reimbursement for all three

children for dental expenses incurred between 2008 and 2012. Those expenses total $557.83. The Separation Agreement provides the parties will share this expense equally and so the respondent owes the claimant $278.91 for his share of his daughters' dental expenses. Analysis 1. Relevant Statutory Provisions [48] Sections 3 and 7 of the Guidelines are engaged in this application. They provide as follows: 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, determined under section 7. (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. . . . 7. (1) In a child support order the court

may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means (a) expenses that exceed those that the spouse requesting an amount for the

extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

2. General Approach to Determining Child Support for Adult University Students [49] Counsel for the claimant relies upon the decision of the B.C. Court of Appeal in Darlington v. Darlington, [1997] B.C.J. No. 2534 to argue that Alicia and Jennifer remain children of the marriage despite being over the age of majority and that the full amount of child support as provided by the tables in the Guidelines ought to be payable for three children. [50] The claimant also argues the amount of $1,070 a month ought to be varied and increased from what was contained in the 2008 Separation Agreement, based on the change in the respondent's income, and that the variations ought to be retroactive to 2010. [51] Counsel relies upon para. 14 in Darlington to argue that the Farden factors (Farden v. Farden, 48 R.F.L. (3d) 60) as they are known have been met in this case and that Alicia and Jennifer remain children of the marriage. Mr. Justice Donald, writing for the Court in Darlington, outlined the Farden factors at para. 14: [14] While the evidence regarding Debra's circumstances was somewhat thin, it was in my opinion sufficient to support the learned chambers judge's findings. I do not, with respect, accept Mr. Darlington's position that it was necessary for Mrs. Darlington to present evidence on all the points upon which Master Joyce elaborated in the case of Farden v. Farden, 48 R.F.L. (3d)

60 at pp.64-65: (1) whether the child is in fact enrolled in a course of studies and ether 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. These have been found by trial judges to be useful in examining the status question. See: Wulff v. Wulff, [1993] B.C.J. No. 2524, 6 December 1993, Vancouver Registry No. K930041; McAlpine v. McAlpine, [1995] B.C.J. No. 1490, 23 June 1995, Victoria Registry No. 5939/20387T; and Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) 121 (B.C.S.C.). [52] It should be noted that in Darlington the child in issue, although an

adult child, was still living at home and attending school full-time. [53] More recently, in Matwichuk v. Stephenson, 2007 BCSC 1589, Madam Justice Garson (as she then was) set out the governing principles and analytical framework to be employed in the determination of the issues raised by the claimant's application. At paras. 22 and 23 Garson J. wrote: [23] In N.(W.P) v. N.(B.J.), 10 R.F.L. (6th) 440, 2005 BCCA 7, Levine J.A., writing for the court, concluded that it is generally inappropriate to use s. 3(1) for determining child support for an adult child attending university. She writes: [35] In rejecting the father's argument that he should apply s. 3(2)(b) of the Guidelines, the chambers judge did not consider the developing jurisprudence in B.C. Supreme Court and other jurisdictions that has found that where an adult student is living away from home, determining child support by using the "table amount" and adding "special and extraordinary expenses", as directed by s. 3(1) of the Guidelines for children under the age of majority is, in principle, "inappropriate". ... [42] In my opinion, in principle, support for an adult child who is entitled to child support because of his or her attendance at a post-secondary institution generally should be determined under s. 3(2)(b). [23] The Manitoba Court of Appeal recently held in Rebenchuk v. Rebenchuk, 279 D.L.R. (4th) 448, 2007

MBCA 22, that the current analytical framework for determining child support for an adult child is: Step 1: Is the person for whom support is sought a "child of the marriage"? Step 2: Is the table amount in the Guidelines "inappropriate"? If not, then the Guidelines amount should be awarded. Step 3: If the answer to Step 2 is "yes," what level of support is "appropriate"? (see also Segall v. Fellinger, 2007 SKQB 207; H.(A.W.) v. S.(C.G.), 2007 NSSC 181; Albert v. Albert, 40 R.F.L. (6th) 203.) [at para. 23] [54] I adopt this approach and will apply it to my analysis to the circumstances raised in this application. Step 1: Is the Child a Child of the Marriage? [55] The first step then in the analysis is a determination of whether Alicia and Jennifer are each still a child of the marriage as defined by s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which provides as follows: 2. (1) In this Act, "child of the marriage" means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [56] Turning again to the decision in Matwichuk, Garson J. reviewed the general principles that govern the

determination of whether an adult child, that is, a child who has attained the age of majority, nevertheless remains a child of the marriage while pursuing post-secondary education. Garson J. stated the following at paras. 25 to 26 and 28 to 31: [25] The pursuit of education necessary to equip a child with a career qualifies as an "other cause" for the continuing dependence of an adult child: Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 at 393 (B.C. C.A.), affirmed in N.(W.P.) at para.

18. In determining whether a child is unable to withdraw from the charge of his or her parents, all of the circumstances should be assessed. Mere attendance at an educational institution is not sufficient to prove that the child cannot withdraw from the parents or obtain the necessities of life: Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) 121 (B.C.S.C), affirmed in N.(W.P.) at para. 18. [26] The surrounding circumstances that should be addressed in determining whether an adult child is a "child of the marriage" were outlined by Master Joyce (as he was then) in Farden v. Farden (1993), 48 R.F.L. (3d) 60, approved in Darlington v. Darlington (1997), 32 R.F.L. (4th) 406 (B.C.C.A.) and approved more recently in N.(W.P.). The Farden factors in determining whether a child remains dependent are: (i) 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; (ii) whether or not the child has applied for or is eligible for student loans or other financial assistance; (iii) 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; (iv) the ability of the child to contribute to his own support through part-time employment; (v) the age of the child; (vi) the child's past academic performance, whether the child is

demonstrating success in the chosen course of studies; (vii) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (viii) 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. . . . [28] In Darlington, the British Columbia Court of Appeal noted that there does not need to be evidence on all the factors listed in Farden in order to establish that a child is a "child of the marriage". As indicated in N.(W.P.) at para. 22, the determination of whether a child fits the definition of a "child of the marriage" is fact-specific and should consider the factors that are relevant in the circumstances whether or not they are specifically listed in Farden. [29] In Rebenchuk, the Manitoba Court of Appeal held that the onus of proof is on the applicant (at para. 26): Another well-settled principle is that an applicant for support bears the onus of proving that the child is still a "child of the marriage." As we shall see, the onus will not usually be a heavy one where the adult child is pursuing the first level of post-high school education, but becomes more burdensome when the issue concerns post-graduate education. [internal citations omitted] [30] In the annotation to N.(W.P.) in 10

R.F.L. (6th) 440, Professor James G. McLeod commented on the concept of a child being "unable" to withdraw from the parents charge because of higher education. He remarked that: the test for where education provides the cause of continued dependence seems to be "reasonableness" as opposed to "inability" in the usual sense of the word. In other words, most children who attend university would be "able" to work instead of attending university, and thus earn income and become independent. But as long as the higher education seems reasonable, then the child should still be considered unable to withdraw from his/her parents' charge. [31] Professor McLeod goes on to comment on the principle behind this interpretation of "unable" in relation to education. He writes: With some hesitation, it is suggested that "education" should be treated like any other potential "necessary". That is, the determination of whether an education is a necessary depends on the child's and the family's circumstances. At the present time, parents are expected to contribute to a first post-secondary degree for a child who has the ability and inclination to undertake post-secondary education in order to prepare the child for employment and financial independence for the simply reason that in current society a person's prospects usually are limited by his or her education ... Assuming scholastic ability, most

people probably regard post-secondary education as necessary to ensure a secure, satisfying job or career. [57] With those guiding principles in mind, I will turn to an assessment of the Farden factors and their application to this case. Factor 1: Full-time or Part-time Studies [58] In this case, both Alicia and Jennifer attend university full-time. Alicia has completed one degree in psychology and is mid-way through her Bachelor of Social Work degree which she will complete in June 2013. Jennifer is half-way through a four-year Bachelor degree in Physical Education. Factor 2: Student Loans [59] In this case, Jennifer has student loans but it does not appear from the materials before me that Alicia does. [60] As Garson J. notes in paras. 34 to 37 of Matwichuk, student loans generally do not impact a finding that a child is a child of the marriage, but they may impact the quantum of child support. I will address this further when I consider the appropriate amount of support payable. Factor 3: Child's Career Plans [61] Courts generally look favourably on an adult child pursuing post-secondary education, particularly where it will assist in permitting the child to withdraw from the care of a parent (see Matwichuk, at paras. 38 and 39). [62] In this case, the respondent does not argue that it is unreasonable for Alicia and Jennifer to attend university. Both are excellent students

receiving at least in Jennifer's case some scholarships that in part defray some of their education costs and living expenses. I find that their choice of post-secondary education is more than reasonable. Factor 4: Child's Part-time Employment Income [63] As Garson J. noted in Matwichuk, at para. 40, a child's part-time income should be treated in a similar manner as student loans in the determination of whether the child is a child of the marriage. Simply because a child works part-time through the year or full-time during the summer does not generally disentitle her from being considered a child of the marriage. As with student loans, a child's income from part-time employment will affect the quantum of a child support order, but generally does not affect whether the child is a child of the marriage. [64] In Atkinson v. Atkinson, 2011 BCSC 1816, Mr. Justice Schultes put the principle this way at para. 16: [16] However, when the child is able to make a contribution to his or her own education and upkeep through part-time work, that amount should be taken into account when assessing child support obligations. The child is entitled, however, to retain some of his or her earnings: Glen v. Glen (1997), 34 R.F.L. (4th) 13, 305 (B.C.S.C.). [65] In this case, both Alicia and Jennifer have earned modest incomes but appear primarily to be focussed on their studies. While employment

income is a factor to assess, it appears from the foregoing to be more an issue for the assessment of the amounts than whether the child is or is not a child of the marriage. Factor 5: Age of the Child [66] In this case, the age of these children is a neutral factor. Factor 6: Child's Academic Performance [67] Alicia and Jennifer are both excellent students. This is not a factor that would limit their entitlement to child support. Factor 7: Parents' Plans for the Child's Education [68] The respondent does not disagree that Alicia and Jennifer have been encouraged to pursue their post-secondary education and that both parents would support their children in the pursuit of their post-secondary education. Factor 8: Relationship with the Parent from whom Support is Sought [69] This factor is neutral in the assessment in this case. Although the relationship between the respondent and his daughters does not appear to be one of a significant ground of contact, there is nothing in the evidence to suggest a ruptured relationship brought about by his daughters' conduct or attitude to their father. [70] In the end, applying the Farden factors and the analytical framework set out in Matwichuk, I find that both Alicia and Jennifer each remain a child of the marriage and will continue to be so, in the case of Alicia until she completes her Social Work degree at the end of May 2013. Jennifer

will continue to be a child of the marriage at least until she receives her undergraduate degree. Both daughters easily fulfill all the relevant criteria set out in Farden and the jurisprudence following it. Step 2: Is the Approach in Section 3(1) of the Guidelines Inappropriate? [71] I turn again to the framework and analysis from Matwichuk, and adopt Garson J.'s comments from paras. 47 to 50. The Guidelines table support amount is generally not appropriate for university students particularly when they are not living at home and the analysis as to the appropriate amount of support falls more properly to be determined under s. 3(2)(b) of the Guidelines. [72] The difficulty in this case is that the respondent has failed to provide any meaningful evidence as to his financial circumstances, apart from limited documentation for his 2010 and 2011 income. There is nothing from his perspective as to his means, needs, and circumstances which the Court can examine. [73] The Court is equally limited in its assessment of the living expenses of Alicia and Jennifer. The Court can infer that they are not living at home by the location of their respective places of study in Merritt and Toronto. The question comes down to whether in the circumstances where the two children are not living at home and it is unclear what their living expenses are or how they are being paid, what amounts they are contributing to their own support and the like, it is reasonable to award the table amount of support plus a further amount under s.

7. In other words, the entitlement of adult children living away from their parents' homes while attending university to s. 7 expenses over and above the table amount of child support does not seem to me to be appropriate unless the analysis of the means, needs and circumstances of the parents and children leads to the conclusion that the payor parent should pay more than the table support. [74] Given the limited information available, the best that the Court can do is determine the table amount of support payable and apply a discount percent for consideration of access to scholarship funds, part-time employment, and reduced living expenses incurred by the claimant where two of the children live away from home. [75] I have previously set out the respondent's Guidelines income for 2010 and 2011 but will do so again for the sake of the determination of retroactive child support. [76] The respondent's 2010 Guidelines income was $65,270. It appears from the material that all three daughters were living at home at that time. Consequently, instead of the $1,070 a month he was paying, the respondent should have been paying $1,286 a month based on the Guidelines. Thus, for 2010 the respondent under-contributed by $216 a month. He therefore owes the claimant $2,592 in arrears of child support for 2010 due to the retroactive variation I have made. [77] For 2011, all three girls were at

home until Jennifer went to the University of Toronto in May and Alicia went to the Nicola Valley Institute of Technology in September. Had all three girls been at home, the respondent should have paid $1,735 a month in child support based on his 2011 Guidelines income of $91,533. He paid $1,070, representing a shortfall of $655 a month. For the first five months, until Jennifer moved to Toronto, this represents a shortfall of $3,325 which he owes the claimant. The remaining seven months I will discount by 25 percent to reflect the fact that neither Alicia nor Jennifer were living at home; Jennifer from June 2012 and Alicia from September 2012. Had all three children been at home the shortfall for the remaining seven months would have been $4,655. Applying a 25 percent discount to this figure results in the assessment shortfall of $3,491.25 for a total of $6,816.25 in arrears of child support owing by the respondent to the claimant for 2011 due to the retroactive variation of the amount of child support payable that I have made. [78] For 2012, I will simply set the respondent's Guidelines income as his 2011 income, that is, $91,533. This will be reviewable in 2013 after the parties exchange their financial information by May 31, 2013. The respondent's Guidelines income upon receipt of that information can be adjusted retroactively to January 2012 and the necessary adjustments,

be they credits or debits, can be made. [79] Based on a Guidelines income of $91,533 for 2012 as can best be determined from the respondent's 2011 Notice of Assessment and the projected income he appears to be set to earn based on his September 8, 2012 Statement of Earnings as a longshoreman, it would likely be appropriate for him to pay the full table amount of child support of $1,778 a month if all three children were at home. [80] However, it is clear that Alicia is in Merritt and Jennifer is in Toronto. They clearly would have some living expenses and no doubt the claimant is contributing to that expense. Given the limited information available from both sides, I propose to reduce the overall amount of table support payable for three children at home full-time to reflect the following facts (i) Alicia and Jennifer are both living away from home, at least during the school year; (ii) they appear to have some means of contributing to their living expenses through part-time employment and/or scholarships; and, (iii) full table support for three children where two are adult children at university living away from home would be inappropriate, particularly where there are s. 7 expenses added in. [81] If Jessica was the only child to support, the respondent would be required to pay $848.80 a month on a Guidelines income of $91,533. The difference between full table support for one

child and full table support for three children at a Guidelines income of $91,533 is $929.20. Discounting this amount by 40 percent to reflect the two eldest children being away from home during the school year and other factors just mentioned results in an overall amount of child support of $1,406.32 per month starting in January 2012. I have discounted the balance between full support for three children and for one child by 40 percent in an effort to reflect the amount of time the two eldest daughters are away from home through the school year in 2012 and no doubt 2013. Accordingly, for 2012 the respondent should have paid the claimant $1,406.32 a month for child support for his three daughters. He has paid $1,070 a month between January and September 2012 and so there has been a monthly shortfall of $336.32. Accordingly, he owes the claimant $3,026.88 as retroactive child support for the first nine months of 2012. [82] Moving forward, with a Guidelines income set at $91,533 for 2012, subject to review, the respondent should pay the claimant $1,406.32 a month for the support of his three daughters, one of whom is under the age of majority and the two elder ones who are over 19 years of age, attending university and living away from home. [83] In conclusion, based on the foregoing analysis and my findings as to the respondent's Guidelines income for 2010, 2011 and tentatively

2012, subject to review, the total amount of child support payable by the respondent is retroactively varied for 2010, 2011 and 2012 to reflect the change in his Guidelines income since the Separation Agreement of 2008. [84] For 2010, the respondent owes the claimant $2,592 for arrears of child support. For 2011, he owes the claimant $6,816.25 for arrears of child support. For January through September 2012 inclusive, he owes the claimant $3,026.88 for arrears of child support. Thus, arrears of child support for 2010 through 2012 are set at $12,435.13 owing and payable by the respondent to the claimant. [85] Moving forward on a prospective basis, commencing October 1, 2012 the respondent should pay $1,406.32 a month in child support for his three children. The amount of child support payable for 2012 can be reviewed after June 1, 2013 and retroactively varied to reflect the respondent's accurate Guidelines income for 2012 once financial information is exchanged no later than May 31, 2013. The same review will occur every year thereafter at the same time and in the same manner. [86] I also order that the parties are to exchange full and properly completed sworn Form 8 Financial Statements that should include their full tax return information including attachments for the purposes of annual review of child support and s. 7 expenses. The financial information is to be exchanged by

May 31 of each year commencing for 2012 by May 31, 2013. Section 7 Expenses [87] I turn now to the issue of the claimant's application for reimbursement for s. 7 special and extraordinary expenses retroactive from 2008 through 2011 and prospectively for 2012. [88] The respondent appears from his income to have the means to contribute. The parties agreed to as much in their Separation Agreement. The respondent insinuates in his submissions that there are RESPs that were set up for the children that he contributed to during the marriage. He further insinuates that the claimant has used them for various educational expenses and has not accounted for these funds in her materials. I note that in the Separation Agreement of 2008 there is no mention of such financial assets. It is inconceivable that if these existed in the state the respondent intimates that they would not have been listed in the family assets and accounted for. The respondent has offered no evidence to substantiate his assertions. [89] I have already outlined the s. 7 special and extraordinary expenses claimed by the claimant as they relate to each daughter. They are modest in terms of education, tuition and textbook expenses for Alicia and Jennifer. Given the limited amounts and the fact that Alicia has been in university since 2008 and Jennifer since 2010, it is reasonable to infer that the amounts claimed do not

reflect the full amount of tuition and textbook expenses. Jennifer has some scholarship money and has incurred some student loans. Both girls have earned some income from part-time employment. I find that the amounts claimed by the claimant represent what she has contributed to Alicia and Jennifer's post-secondary tuition and textbooks but this does not represent the full costs incurred. It is reasonable to infer that Alicia and Jennifer are also contributing personally to their education expenses. [90] The Separation Agreement is silent on the issue of post-secondary education expenses. However, s. 7(1)(e) of the Guidelines provides that post-secondary education is a s. 7 expense and s. 7(2) enunciates that the guiding principle for determining the amounts of an expense that it should be shared by the spouses in proportion to their incomes. I conclude that this is a reasonable approach for the retroactive claim for s. 7 expenses for a post-secondary education. The dental expenses and Jessica's school fees shall be shared equally in accordance with the Separation Agreement. [91] For the purposes of calculating the s. 7 expenses retroactively between 2008 and 2011 and prospectively for 2012, the parties' Guidelines income and proportionate share of s. 7 expenses for post-secondary education purposes are as outlined in para. 19 of the claimant's second affidavit of September 14,

2012. Year Claimant Income Respondent Income Claimant Share of s. 7 Expenses Respondent share of s. 7 expenses 2008 $100,000 $54,034 65% 35% 2009 $122,818 $25,044 84% 16% 2010 $92,358 $65,270 59% 41% 2011 $100,000 $91,533 53% 47% 2012 $100,000 $91,533 53% 47% [92] I accept the claimant's evidence, as documented in her two affidavits, that between 2008 and 2011 she paid $9,463.56 for Alicia's post-secondary tuition and textbook expenses. The respondent's proportionate share of this amount as outlined at para. 22 of the claimant's second affidavit of September 14, 2012 is $3,710.62. [93] I also accept the claimant's evidence, as documented in her two affidavits, that between 2010 and 2011 she paid $9,002.34 for tuition and textbook expenses and a further $2,227.26 in moving and transportation for Jennifer's post-secondary education pursuits. The respondent's proportionate share of these two amounts as outlined in paras. 23 and 24 of the claimant's second affidavit is $4,980.17. [94] I have previously indicated why I am not allowing the claimant's claim for retroactive reimbursement of the s. 7 expenses for sporting activities for Jennifer and Jessica. [95] To summarize then, the respondent owes the claimant the following amounts for retroactive s. 7 special and extraordinary expenses: (a) $160 representing his 50 percent share of Jessica's school fees; (b) $278.91 representing

his 50 percent share in the dental expenses incurred for all three children through 2012; (c) $3,710.62 representing his proportionate share of Alicia's post-secondary education expenses for 2008 through 2011; (d) $4,980.17 representing his proportionate share of Jennifer's post-secondary education expenses for 2010 and 2011. [96] The total amount of retroactive s. 7 expenses owed by the respondent to the claimant is $9,129.70. [97] Moving forward, on a prospective basis, the respondent shall contribute his proportionate share to the s. 7 special and extraordinary expenses as they relate to the children's secondary and post-secondary education, medical and dental expenses and any reasonable sporting activities as discussed and agreed upon by the parties in advance in writing. Conclusion [98] For the foregoing reasons, the claimant's application for a retroactive variation of child support for 2010 and 2011 is allowed. The respondent owes the claimant $2,592 for 2010 child support, $6,816.25 for 2011 child support, and $3,026.88 for 2012 up to and including September 30, 2012. Thus, he owes the claimant a total of $12,453.13 in arrears for the retroactive variation of child support for the three children for 2010, 2011, and 2012 through to the end of September 2012. [99] Alicia will remain a child of the marriage until she completes her Bachelor of Social Work at the end of May

2013. The respondent's child support payment on a monthly basis for the remainder of 2012 and until his 2012 Guidelines income can be properly reviewed, will be $1,406.32 a month for the children commencing October 1, 2012. [100] The claimant's application for retroactive s. 7 expenses is also allowed. I have earlier summarized the breakdown that the respondent owes the claimant for his share of his expenses incurred by the claimant. The total retroactive s. 7 expense amount the respondent owes the claimant is $9,129.70. [101] In addition, on a prospective basis, the respondent will contribute his proportionate share to the s. 7 special and extraordinary expenses as outlined earlier in these reasons. [102] The parties shall exchange their sworn Form 8 Financial Statements no later than May 31, 2013 and every year thereafter for the purpose of reviewing and adjusting the amount of child support and proportionate share of s. 7 expenses the respondent should pay to the claimant. The adjustment can be retroactive to the beginning of the year each year and the appropriate credit or amount owing can be offset against the determined child support owing prospectively from June of the year in which the adjustment is made. [103] In addition, the respondent will pay the claimant an additional $500 pursuant to s. 92 of the Family Relations Act for his failure to respond to the letter of November 4, 2011 requesting his updated financial information and his failure to provide financial disclosure as required by the provisions of the Family Relations Act. [104] Finally, the claimant is entitled to her costs of this application. [105] Thank you. "Ker J."