Sung v. Sui

2023 BCSC 1458 Sung v. Sui

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sung v. Sui, 2023 BCSC 1458 Date: 20230613 Docket: E013062 Registry: Vancouver Between: Won Xian Sung aka Huan Xian Song Claimant And Kiam San Sui aka Kian San Sui Respondent Before: The Honourable Mr. Justice Veenstra Oral Reasons for Judgment The Claimant, appearing in person: H. Song Appearing as Representative for the Claimant: A. Song Counsel for the Respondent: G. Vlug Place and Date of Hearing: Vancouver, B.C. June 8, 2023 Place and Date of Judgment: Vancouver, B.C. June 13, 2023 [1] The respondent seeks an order confirming that his obligation to pay child support terminated at the end of October 2022, and fixing arrears at $0.00. The respondent says that the parties' son, who is now 26 years old, is no longer a "child of the marriage" as that term is defined in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), for purposes of determining liability for child support. Background Facts [2] By way of background, the parties are 72 (the respondent) and 66 (the claimant) years of age respectively. In their evidence, they say that they are either retired (in the case of the claimant) or retiring (in the case of the respondent). [3] The parties were married in November 1992, at a time when both lived in China. Their son, Alex, was born in August 1996. He is now 26 years of age. The parties separated in 2001, and this action was

commenced that same year. [4] In April 2004, at a time when both parties were represented by counsel, the parties obtained a final order of divorce and for various collateral relief. That order was processed as a desk order. With respect to collateral relief, the 2004 order provides that: (a) Both parents are guardians; (b) Alex is to have primary residence with the claimant, with the respondent to have generous access as agreed, and the claimant had the right to make decisions with respect to Alex if the parties could not agree; (c) The respondent was found to have a guideline income of $24,000 per annum and ordered to pay child support of $212 per month, plus $88 per month in respect of additional expenses; (d) There were orders for division of property, including a lump-sum payment, which represented full and final satisfaction of claims as to property as well as claims for spousal support; (e) All remaining claims were dismissed by consent. [5] In 2014, at the age of 18, Alex enrolled at SFU. He attended programs there for three years. [6] Various disputes arose in 2016, and applications were filed in this court. On April 5, 2017, a consent order was pronounced by Justice Macintosh. The consent order provided that: (a) Child support payments were to increase to $431 per month, which was to be paid until Alex was no longer a "child of the marriage" as that term is defined in

the Divorce Act; (b) The respondent was to pay 75% of all special expenses; (c) Arrears were to be paid as follows: $5,172 in full satisfaction of all claims for arrears of child support, and $8,925.74 in full satisfaction of all claims for arrears of special expenses; and (d) In the future, the parties were to exchange tax returns by June 30 of each year. [7] The claimant now contests the April 2017 consent order, saying that Mr. Sui's lawyer "prevented" her from presenting further invoices and sought the court order without her consent. No application has been made to set aside the order, which appears to be signed on behalf of the claimant. As I explained to the claimant at the hearing before me, an order of this court stands unless and until it is set aside, and so far as I am aware, no steps have been taken to set it aside. [8] Various records from the Family Maintenance Enforcement Program ("FMEP") have been disclosed. They indicate that on May 19, 2017, the respondent paid $5,172 and $8,925.74 to the claimant. They also indicate that, from the time of the consent order until the end of October 2022, the respondent paid child support of $431 each and every month. [9] As noted above, Alex did not complete a degree at SFU. Rather, in 2017, he withdrew from that program and enrolled in a diploma program at BCIT in computer systems. Alex's BCIT transcript has been produced.

It indicates that successfully completed the diploma program with good marks. In the fall 2017 term, he completed seven courses for 28 credits, with a fall term average of 82%. In the next term, he took a further seven courses for 32 credits, and achieved a GPA of 80%. In the spring and summer of 2018, he took one course for 5 credits and attained a mark of 93%. [10] There is reference in the materials to Alex having been involved in a collision with another student in 2018, and having hit his head. There is nothing in the materials to indicate whether that affected his school performance. The only medical evidence in the record before me is a February 2023 consultation report from a neurologist to Alex's family doctor. That document suggests that there may have been a spinal cord injury at the time of the 2018 collision, and that the neurologist recommended that Alex avoid sparring or other high impact activities where there could result a head or neck injury. [11] In the fall 2018 term, Alex completed a further six courses, earning 26 credits and attaining a GPA of 78%. In the next term, he completed a further seven courses and 31 credits with a GPA of 72%. He completed his diploma program by the end of April 2019. The date on his diploma is May 24, 2019. [12] In April 2019, the FMEP asked the claimant to complete a "Child's Circumstances Form". On that form, the claimant

indicated that Alex was still in school, with an anticipated completion date of June 2021. It also indicated that he was working part-time. When asked whether Alex had "a medical condition or disability that prevents [him] from working or attending school", the claimant answered "no", but put in a handwritten note that "However, Alexander suffered permanent disability that may affect his working or study progress". There is reference in the claimant's materials to Alex having suffered hydrocephalus at the time of his birth. However, there is no medical evidence, and Alex's progress in his various post-secondary programs provides no basis to conclude that he has a medical disability. [13] On May 13, 2019, FMEP forwarded to the respondent the completed Child's Circumstances Form, and advised that based on this information the FMEP would continue to collect child support. [14] In the fall of 2019, Alex continued at BCIT, having moved into a Bachelor of Technology degree program in Network Security Applications Development. That fall, he took five courses for 15 credits, and earned a GPA of 87%. In the winter 2020 term, he continued with a further five courses for 15 credits and attained a GPA of 85%. [15] In March 2020, the claimant completed another Child's Circumstances Form, indicating that Alex continued to be enrolled in school, that his term end was April 2020, that his

anticipated completion date was "degree", that he was working part -time, and that he had no medical condition or disability. On March 11, 2020, the FMEP wrote to the respondent, advising him that based on this information it would continue to collect child support until April 17, 2020. [16] The claimant completed another Child's Circumstances Form on March 31, 2020, which was the same as the one completed earlier that month, other than that it indicated that Alex's anticipated completion date was June 2021. On April 1, 2020, FMEP wrote to the respondent, providing this updated form, and advising that based on this information it would continue to collect ongoing child support. [17] Alex did not take any programs in the summer of 2020, but in the fall of that year he took a further five courses for 15 credits, for which he attained a GPA of 78%. [18] A further Child's Circumstances Form was completed on September 22, 2020. It was essentially the same as the one completed on March 31, 2020, except that it indicated that Alex was not working. The FMEP forwarded that form to the respondent on September 25, 2020, indicating that based on the information provided it would continue to collect ongoing child support. [19] In the winter 2021 term, Alex completed four courses for 10 credits and attained a GPA of 75%. His transcript from BCIT indicates that he has not completed any

further credits since April 2021. [20] In the spring and summer of 2021, Alex enrolled in a course identified as COMP 8047 (Major Project), which was a six-credit course. He did not complete the course that term, and his transcript shows zero credits completed and a GPA of 0%. Although the previous documents sent to FMEP had indicated an anticipated completion date of June 2021, Alex did not complete his degree at that time. [21] On June 23, 2021, the claimant completed a further Child's Circumstances Form. In it, the anticipated completion date was shown as November 2021. It indicated that Alex was working part-time. Again, it indicated that there was no medical condition or disability that prevented Alex from working or attending school. The FMEP forwarded this document to the respondent, indicating that based on this information it would continue to collect ongoing child support. [22] The BCIT records that were before the court indicate that Alex did not enroll at BCIT for the fall term of 2021. [23] The claimant completed a further Child's Circumstances Form on November 3, 2021. On it, she answered "Yes" to the question whether she was still expecting ongoing child support for Alex. She did not mark either the "Yes" or the "No" box for the question "Is the child in school". However, she did put in a "Term start date" of September 2021, a "Term end date" of May 2022, and an

anticipated completion date for Alex's program of May 2022. The form continued to report that Alex was working part-time. [24] The FMEP forwarded this form on to the respondent on November 8, 2021, and advised that based on the information provided it would continue to collect ongoing child support. [25] For the term beginning in January 2022, Alex re-enrolled in COMP 8047 (Major Project). Once again, the transcript reports zero credits completed and a GPA of 0%. [26] The claimant's counsel at the time, Mr. Yu, wrote to the respondent in May 2022, demanding production of income information. The respondent's evidence was that he provided his current tax information during the summer of 2022. [27] Alex re-enrolled in COMP 8047 for the spring/summer term of 2022. The documents indicate a course start date of June 6, 2022. The record before me also indicates a tuition refund on June 20, 2022. There was no explanation in the materials as to why there was a tuition refund. The BCIT transcript, which was printed on February 7, 2023, shows nothing after the spring/summer 2022 term, but for that term indicates that the COMP 8047 program credits are "In Progress". [28] On October 3, 2022, the respondent made a final payment of $431, being the monthly child support specified in the April 2017 consent order. On October 23, 2022, the respondent's counsel Mr. Vlug wrote to Mr. Yu, demanding

production of documents related to factors listed in Farden v. Farden, [1993] B.C.J. No. 1315 (S.C.). Mr. Vlug went on to state: In the meantime, there is a 25 year old child who likely does not qualify for child maintenance any more, and so child maintenance payments will be suspended until such time as we can confirm that the child still qualifies for child maintenance. The child has had 7 years to graduate post secondary studies. On the other hand, if the child still qualifies, then Mr. Sui has no reservations about continuing child maintenance. The Receiver is totally in control of how long the delay is before child maintenance resumes. We would ask FMEP to respect that we are trying to determine eligibility and we ask FMEP to cease enforcement until such time as a decision has been made using the proper disclosure. [29] A copy of the letter was also sent to FMEP. [30] On October 26, 2022, FMEP advised that it had conducted a review of the child's circumstances in May 2022, and had been advised at that time that the anticipated graduation date was December 2022. FMEP advised that it would continue to monitor the situation and that no current enforcement was in place. [31] On November 30, 2022, FMEP reinstated enforcement by issuing a notice that it had issued a federal intercept (to divert any federal benefit payments) and invoiced the respondent for a default fee. [32] On

December 10, 2022, Mr. Vlug wrote to Mr. Yu, following up on the requests made on October 23, 2022, and advising that FMEP was now taking steps to enforce. He asked Mr. Yu for his availability for a hearing. Mr. Yu did not respond, and indeed does not appear to be currently retained in respect of this matter. The present notice of application was filed on December 22, 2022, seeking both production of the Farden factor documents and cancellation of child support. A slightly amended notice of application was filed on January 27, 2023. [33] On February 28, 2023, the parties appeared in chambers before Justice Iyer. The hearing was 12 minutes long, and the clerk's notes indicates simply that the application was adjourned generally. However, it does appear that the claimant understood from the hearing that she was to produce information on Alex's academic record and planning. [34] At some point in March (the date is not clear), the claimant and Alex provided documents to Mr. Vlug, including the BCIT transcript as well as a summary that Alex prepared of the status of his "Major Project". In addition, the claimant wrote to Mr. Vlug requesting information as to the respondent's income from 2004 to 2016. It appears that the purpose of this request was to advance a claim for past arrears of special expenses in the years leading up to 2016. [35] On April 12, 2023, FMEP wrote to the

respondent, stating that it had been advised that the respondent's application had been adjourned generally by the judge, and demanding a payment proposal in respect of what were said to be arrears of $2,071.73. That same day, a notice of attachment was issued. [36] On April 18, 2023, Mr. Vlug wrote to the claimant, advising of his view that having reviewed the documents provided, Alex had not been eligible for child support for over a year, and asking for available dates for the resumed hearing. On May 10, 2023, he forwarded a requisition scheduling the resumed hearing for June 1, 2023. The hearing ultimately occurred on June 8, 2023. [37] On May 12, 2023, the claimant wrote to Mr. Vlug, advising that Alex needs more time to finish his program and is unable to support himself financially. She repeated her request for income documents from 2005 to 2017. [38] One of the documents that had been sought by Mr. Vlug was a letter from BCIT explaining the status of Alex's program and what remained to complete it. Alex explained in the summary provided in March 2023, that he had requested such a letter but that it had not yet been received. He advised the court at the hearing of this application that the letter lad still not been received. [39] In the written summary that Alex provided, he explained that: For me to be qualified or enrolled in the graduation program course, I must

submit a proposal of my project idea. The proposal submission period is only during the Fall semester at BCIT. That would roughly be from October to the beginning of December. If my proposal is not approved by the end of that period, I will have to wait until the Fall semester of the following year (2024) to attempt it again. If my project proposal is approved, I will be enrolled into the graduation project course for me to work on it and submit it. This course will require tuition. The course will run from January through to about April. If I am unable to finish the project or it does not pass submission process, I will have to enroll in the summer semester of this course. This course will also require tuition. It will run from May through to October. Progress on the "Major Project" is minimal. For the "Major Project" to appear on my transcript, a proposal of a project must be approved. So, as you see it has appeared multiple times, it means that the project proposal I have submitted did get approved for those times. I don't have much to show for progress as I have not been in the best mental state for the past two years. Progress has been scrapped many times as certain aspects of what I planned have not worked. [40] Alex also stated in his written explanation that, even while he is not actively working on completing his degree, he is "learning new technologies and practicing

computer science questions/problems", which he said is "in preparation to look for a job". Alex spoke to the Court at the hearing of this matter and advised that he has until 2025 to complete his major project in order to finalize his degree. [41] In addition to what is set out above, the materials before me delved into various matters that, while providing some background into the parties' motivations, have little impact on the specific question I must consider: that being, whether Alex continues to be a "child of the marriage". There is clearly resentment that the respondent showed little or no interest in having a relationship with Alex during his years growing up. There are assertions that the respondent failed to pay child support - assertions that are questionable given what is set out in the FMEP statements that are in the record. There is also evidence of frustration on the part of the respondent who clearly feels that Alex spends too much time playing video games and not enough time bearing down to complete his studies. [42] Finally, I note the respondent's evidence that he has a daughter from another relationship who is turning 18 and about to start university. His evidence is that he is concerned about his ability to support his daughter as she embarks on post-secondary studies. Legal Context [43] Pursuant to s. 15.1(1) of the Divorce Act, support can be ordered in

respect of a "child of the marriage". Pursuant to s. 2(1) of the 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; [44] The approach to be followed in determining whether an adult child remains a "child" for purposes of child support was usefully summarized in Dring v. Gheyle, 2018 BCCA 435 at paras. 47-50: [47] In British Columbia, a person reaches the age of majority on becoming 19 years of age: Age of Majority Act, R.S.B.C. 1996, c.

7. However, under s. 146 of the FLA, a person over the age of 19 who is unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians, remains a child for the purpose of receiving support. [48] Pursuant to s. 147 of the FLA, each parent and guardian of a child has a duty to provide support for their child. Pursuant to s. 149, a court on application may make an order for child support. The application may be made by the child's parent. [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." [45] It is not unusual for courts in British Columbia to find that attendance at post-secondary education is an "other cause" by which a child continues to be a child of the marriage after the age of majority. As summarized in Neufeld v. Neufeld, 2005 BCCA 7 at para. 18: [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.). [46] The factors to be considered by the Court in considering whether pursuit of education is a valid reason for continued dependence were reviewed in Nordeen v. Nordeen, 2013 BCCA 178 at paras. 16-17: [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 (see, for example, Darlington v. Darlington (1997), 32 R.F.L. (4th) 40; W.P.N. v. B.J.N., 2005 BCCA 7 and De Beck v. De Beck, 2012 BCCA 465). 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. [47] As noted in Hartshorne v. Hartshorne, 2010 BCCA 327 at paras. 76-77: [76] 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). I am not persuaded the trial judge erred in his award of retroactive child support for the son to the date of the Order. I am of the view, however, that there is no evidence to support a finding of the son's ongoing financial dependency upon the respondent by reason of "illness, disability or other cause" that might support the trial judge's award for prospective child support. [77] Although, the son is not a child of the marriage at this time, it is also the case that an adult child who has

become or is found to no longer be a child of the marriage, may return to that status for a variety of reasons, including a return to post-secondary education or evidence that supports a finding of illness or disability that prevents him from becoming financially independent. At such a time, an adult child may again be entitled to child support. [48] The applicable criteria were applied in Dring at paras. 103-104: [103] The order for ongoing support is premised on the Son continuing to be a "child" within the meaning of the FLA. The trial judge appears to have reached this conclusion on the basis that the Son, on the narrowest balance of probabilities, was at the time of trial, on an appropriate educational path. With respect, that is not the correct legal test. The legal test is whether or not the Son is unable for some reason to obtain the necessaries of life or withdraw from the charge of his parents. As was made clear by Justice Levine in Neufeld, mere attendance at an educational institution is not sufficient. If the mere attendance at an educational institution was sufficient, the Farden factors which the courts have long used to assist in determining whether an adult pursuing an education remains a "child" would be of no import. [104] In this case, the Son attends two three-hour evening classes per week. Such limited attendance in no way prevents the Son from being

unable to leave his parents' charge. The trial judge's conclusion that the Son, at the time of the trial, was a "child", was with respect an error of law and not consistent with the statutory test. I would therefore set aside the finding that the Father has a present obligation to pay ongoing support. Analysis [49] In my view, there is no doubt that Alex remained a "child of the marriage" for purposes of determining eligibility for child support until April 2021, as a result of his ongoing, full-time or nearly full-time attendance at SFU (until 2017) and then BCIT. [50] His status after that point in time is more difficult to ascertain. [51] Since April 2021, Alex's enrollment at BCIT has been intermittent. He appears to have been formally enrolled for the remaining course during the terms beginning in May 2021, January 2022 and May 2022, but not otherwise. His registration was for a six-credit course, rather than the 15 credit load he was successfully carrying in previous terms. He did not obtain any credits for work done during any of the terms from and after May 2021. I do not accept that Alex's efforts to learn about new technologies, outside of a formal education program, are appropriately considered participation in education that renders him unable to withdraw from his parents' charge. [52] I do conclude that Alex's career plans are reasonable, in that his goal is to

complete a degree and then search for work in his field of study. His academic performance leading up to April 2021 shows success in his course of studies. However, the fact that he has not progressed in his goals since April 2021 is of great concern. [53] Although Alex advised that he has applied for student loans, and says they are reflected on his income tax returns, there is nothing in the evidentiary record to support this or to indicate amounts. [54] There is not a sufficient evidentiary basis to conclude that Alex is, as a result of illness, unable to withdraw from his parents' charge, or that any illness has prevented him from completing the final credits required for his degree. The only medical evidence dealt with participation in physical activities, not with either work or school. [55] Alex has also worked part-time since before 2021. I was advised during submissions that he is employed at Shoppers Drug Mart. The record does not indicate what his regularly weekly hours are, how much he earns, or whether he can contribute to the costs of his education. [56] Having considered the various Farden factors, it is my view that Alex is no longer a child of the marriage on the basis either of health concerns or of ongoing pursuit of education. The evidence indicates that Alex ceased his active, full-time participation in his education after April 2021. His father continued

to pay child support for some 18 months after that point in time. It would have been reasonable to require child support payments for a period of time after April 2021 to permit Alex to complete his final six credits. It would also have been reasonable to provide for a grace period to make the transition to financial independence. However, it is my view that the 18 months during which the respondent continued to pay child support adequately reflects each of those purposes, and that it is not reasonable to require the respondent to continue to pay child support after October 2022. [57] I would thus grant the specific orders sought, which are to confirm that the respondent's obligation to pay child support terminated as of the end of October 2022, and confirming that the arrears of child support are fixed at $0.00. [58] The claimant seeks that I order the respondent to pay certain special expenses. There is no application before me with respect to such expenses, nor are there receipts and other supporting documents. The bulk of the items on the list of expenses that was in the affidavit materials appear to have been incurred prior to the 2017 order - which order seems on its face to provide for payments in full satisfaction of all outstanding obligations for special expenses. [59] As I noted above, there has been no application made to set that order aside. I do not want to

pre-determine what the result would be of any application for payment of special expenses from times when Alex was a child of the marriage, but I would conclude that there is no basis for me to make such an order given that there is no application made and no supporting documents presently before the court. [SUBMISSIONS] [60] I'm going to order costs to the respondent as the successful party, but I'm going to fix those costs at $1,000.00. [SUBMISSIONS] [61] I'm going to ask you to send the draft order to the claimant, and if they have concerns they need to send those to you. If after one week they have no concerns then you can sign it and submit it to the registry and they will forward it to me for review. If they do provide you with concerns about what's in the order, then those concerns should be expressed in an email and you should include that email in your submission to me and the registry will forward that to me and I will review what they've said in their email and decide whether to sign the order as you've drafted. [SUBMISSIONS] [62] I'll dispense with the signature of the claimant on the order, on the condition that it be provided to the claimant for review, and that they have a week to respond by email with any concerns about the form of the order, and whether it accurately reflects what I've ordered, and if they think it does not then they can send an email to Mr. Vlug and he will include that email in what he submits to the court. "Veenstra J."