Woody v. Milner

2014 BCSC 396 Woody v. Milner

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Woody v. Milner, 2014 BCSC 396 Date: 20140312 Docket: E014003 Registry: Vancouver Between: Mark Stephenson Woody Claimant And: Kathleen Patricia Milner Respondent Before: The Honourable Mr. Justice Groves Reasons for Judgment In Chambers Counsel for the Plaintiff: S. Simpson Acting on her own behalf: K.P. Milner Place and Date of Hearing: Vancouver, B.C. January 28, 2014 February 6, 2014 Place and Date of Judgment: Vancouver, B.C. March 12, 2014 Introduction [1] In this family proceeding, there are a number of issues to be resolved between the parties relating to their financial obligations towards their now adult children as well as a potential determination of their respective incomes for the purposes of determining that obligation. [2] To some degree, the fact that this family law matter has come before the courts in the fashion it did is sad given the number of years the parties have been able to work through matters as they arose without court involvement. Background [3] The claimant is a 59-year-old President and Senior Manager of a company in Ontario called Palfinger Inc. His gross income has fluctuated over the years but it is currently $307,115 annually. The respondent is 51-years-old and is employed as a medical office assistant. She states in her materials that her gross income is approximately $29,900 a year. [4]

The parties married in November 1987 and separated in May 2001. They were divorced by Mr. Justice Goepel's order of the 28th of February 2003. At that time, the parties three children, 12, 9, and 7 years of age, resided with the respondent. [5] The order of Mr. Justice Goepel is, of course, the starting point for any review. That order was a consent order and set Mr. Woody's income at $165,000 and determined his support obligations for their three children pursuant to the Federal Child Support Guidelines, SOR/97-197 (the "Guidelines") in the monthly amount of $2,418. It was agreed that he would pay half that amount on the 15th of each month and the other half on the 30th. [6] Additionally, Mr. Woody agreed to pay spousal support in the amount of $1,500 per month, being $750 on the 15th and $750 on the 30th. The provisions for spousal support could be varied by further court order or would terminate if Ms. Milner remarried or cohabited with another person in a marriage-like relationship for a period in excess of 60 days. There has to date been no application advanced to vary this spousal support award. An application to do so has been filed but it has never been set for argument. [7] It appears that up until perhaps sometime in early 2013 the parties acted very responsibly towards each other and towards their children. For example, when the two oldest children finished high

school, they both went to McGill University. Their father, who had a considerably higher income than their mother, agreed to pay the entirety of the costs of post-secondary education for these two older children. [8] Additionally, Mr. Woody continued to pay child support to Ms. Milner for a period of approximately one to one-and-a-half years after the two eldest boys actually left her home to attend University. In other words, for a period of time while he was paying for the boys' university education, he continued to pay child support for them to Ms. Milner. This clearly allowed her to maintain her home for the children, as they would stay in her home during summers and on other occasions. [9] Additionally, and to the credit of Mr. Woody, Mr. Woody periodically increased his child support payments. I am not able to determine, on the evidence before me, if his payments were completely consistent with the requirements of the Guidelines in place at the appropriate times. However, it is clear that his income did go up dramatically after the consent order of Mr. Justice Goepel was granted and Mr. Woody periodically and voluntarily increased his child support payments. [10] A final matter of note is that Mr. Woody, up until recently, has not raised the issue of terminating his spousal support obligations. Though this appears admirable, I find it reflects the circumstances of his

former wife, of which he was aware, circumstances which included her having primary care of the children in her home and her having been diagnosed with cancer on three occasions, which no doubt affected her attempt to become economically self-sufficient as is her obligation under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [11] However, sadly something happened in or around 2013 to cause this matter to become particularly vexatious. The level of animosity between the parties was of particular note when this hearing first began on January 28, 2014. [12] By this date, Ms. Milner had already provided a financial statement, had provided a number of years of income tax returns and a number of years of bank statements. Essentially, I find that she met her obligation under the Supreme Court Family Rules for a person receiving support, as her Form F8 was completed with attached tax returns, even though it might not have had her most recent statement of earnings. [13] Despite receiving this financial statement, Mr. Woody advanced an application at the initial hearing that Ms. Milner be fined $5,000 for her failure to provide "adequate financial disclosure". This was done despite her filing the Form F8 on the 13th of January 2014, which, as noted, attached the required tax returns and appears to be close to 100 pages in total, and despite her filing in excess of 390 pages of bank

statements, pay statements, VISA statements and similar financial documents for a number of years. [14] At the January 28, 2014 hearing, Mr. Woody sought additional and substantial financial disclosure from Ms. Milner. These two substantial requests, additional financial disclosure as well as a fine for alleged lack of disclosure, were abandoned by Mr. Woody, correctly, at the continuation of this matter on the 6th of February 2014. Issues [15] The issues which the court has to resolve relate to two of the parties' three children. I characterize these issues as follows: 1. Was the youngest child, Todd, a child of the marriage as of April 2013 through to January 2014? Todd turned 19 in April 2013 and the claimant seeks to end his child support obligation as of that date, although of note he continued to pay child support through to at least November 2013.

2. Is the eldest child Scott, who is now 24 years of age, and living with Mr. Woody, still a child of the marriage?

3. If Scott is a child of the marriage, what is the income of Ms. Milner for child support purposes and what is she obligated to pay in support for Scott?

4. Are there any funds owing to Ms. Milner by Mr. Woody under the order of Mr. Justice Goepel for any of the children? [16] Before dealing with those issues, a few remaining facts must be addressed. [17] As noted earlier, the parties had three children. The eldest, Scott, who is 24 and currently resides with his father, attended close to four years of university at McGill but did not successfully complete a degree program. During those four years, he was supported exclusively by his father in terms of his tuition, books, and living expenses. [18] The parties' middle child, Matt, is currently in his final year at McGill, where he started in September 2010. He has also been supported in his academic efforts at McGill exclusively by his father. It is expected that Matt will graduate this April. [19] At the initial application, Mr. Woody sought contribution towards these s. 7 expenses for Scott and Matt, retroactively to the time he began paying them. He abandoned this application at the subsequent hearing of February 6, 2014. As such, there is no issue before the court relating to Matt and the issue relating to Scott is solely as noted above, i.e. whether he continues to be a child of the marriage. Issue No. 1: Todd [20] Todd is the youngest child of the marriage. He turned 19 in April 2013. The primary issue is whether or not Todd continued to be a child of the marriage until he

left his mother's home under unfortunate circumstances on the 30th of January 2014. [21] There are before the court two affidavits sworn by Todd Woody and a response affidavit in regards to issues raised about Todd in Kathleen Milner's Affidavit No. 3. [22] In his first affidavit, dated the 22nd of January 2014, Todd responds to Ms. Milner's first affidavit in regards to his health circumstances. Todd acknowledges that he has a skin disorder but downplays the significance of it. He says that he only experiences the blistering of his skin associated with the disorder when he exerts himself too much, which he says he rarely does. He agrees that he is not able to work in the trades because the exertion will exaggerate his skin condition. He deposes to his intention to move out of his mother's home in May or June 2014 and talks about going to school at some point in the future, but likely not as of September 2014. He deposes that since August 2013 he has worked in the liquor store in Duncan, earning $11/hour and working 32-40 hours per week. He deposes that his mother has never contributed to his living expenses, and that he buys 90% of his food, 100% of his toiletries and 100% of his clothing. He does acknowledge that his mother paid for a scooter for him at a cost of $2,500. This scooter assists him in getting back and forth to work, weather permitting. [23] In the respondent's

Affidavit No. 3, as well as in her earlier affidavits, Ms. Milner comments on Todd and states that Todd was in high school until June 2013. The respondent states that Todd intended to return to school in January 2014 and needed to take a math course online to graduate. She also notes that Todd lived in her home on Shawnigan Lake, that he paid no rent and that she drove him to work when it was raining or snowing. [24] Additionally, she attaches to her Affidavit No. 3 a letter from Dr. J.L. Kelly who is Todd's doctor and her employer. The doctor's letter is informative as it relates to Todd's skin condition and paints a different picture than does Todd in his affidavit, a picture which suggests that only with "careful selection of activities or jobs" will Todd be able to manage and control the persistent and life-long affliction associated with his skin disorder. Ms. Milner's affidavit comments as to Todd's condition are consistent with the doctor's letter. [25] Also attached to the respondent's Affidavit No. 3 is an email sent from the claimant, Mark Woody, to his son Todd on the 17th of September 2013. This email was sent prior to Todd's swearing his first affidavit. The email makes reference to an attached email from Mr. Woody's lawyer, with a number of questions about Todd. The tenor of the email is an encouragement to Todd to review the questions, answer them and prepare an

affidavit to support his father's case. His father says in this email in part: "I want to be very honest and say that your affidavit will be critical to my case and therefore I would like you to send me your reply. You know that if your mother gets all this money from me you will never get a penny!". [26] Todd Woody swore a second affidavit on the 31st of January 2014 in which he indicated that he moved out of his mother's home on the 30th of January 2014 and is now living in Victoria with friends and intending to continue do so. He cites the difficulties associated with the litigation as a reason for moving earlier than he had originally planned. [27] Based on the evidence before me, I have concluded that Todd Woody was a child of the marriage until the end of January 2014 when he moved out of his mother's home. He was clearly in high school past his 19th birthday, and was in school full-time until sometime in June 2013. I accept the affidavit evidence of the respondent that the initial intention was for Todd to commence some schooling in January 2014 and that during the fall of 2013 he would work part-time and complete the one online course that he was required to complete to finish his high school graduation requirements. Todd did work part-time, but apparently did not complete the course. Of considerable weight however is the fact that the respondent continued to support

Todd. She bought him a scooter to assist him in travelling to work, and she continued to drive him to and from work when weather did not permit him to use this scooter. She fed him and housed him in her home in Shawnigan Lake, though Todd does not appear to acknowledge that this is a contribution towards his maintenance. [28] It is sad that a father would send an email such as the one Mark Woody sent to his son, Todd Woody, on the 17th of January 2014 with the express intention of having Todd say something so as to avoid the situation of his mother getting "all this money" whereas "you [Todd] will never get a penny". This blatant attempt at obtaining information from Todd for financial gain or financial defence does not reflect well on Mark Woody and causes the court considerable pause when considering the sworn evidence of Todd Woody. As a result, I reject Todd Woody's evidence in regards to his suggested level of independence. [29] As Todd remained a child of the marriage until he left his mother's home on January 30, 2014, Mr. Woody's obligation to pay child support to Ms. Milner in respect of Todd continued until that date. According to the Guidelines table amount for Ontario, a parent who earns what Mr. Wood does, namely $307,115 a year for Guidelines purposes, would be obligated to pay child support in the amount of $2,426 per month for one child. Issue No. 2: Scott [30]

The issue concerning the parties' 24-year-old son Scott relates to whether or not he should still be considered a child of the marriage. The issue of when children over the age of 19 are eligible to be considered children of the marriage is often a troubling one for courts. [31] There is no magic inclusion factor or cut-off date for children who pursue post-secondary education. The court must consider the unique factors of each child and each educational path in relation to both its objective and its success. [32] In the case of Farden v. Farden, [1993] B.C.J. No. 1315 (S.C.), Master Joyce, as he then was, set out a number of guiding principles which the court should consider in determining whether or not a child continues to be a child of the marriage after the age of 19. The eight factors the court may wish to consider in making this determination are noted as follows: (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. [33] In regards to those factors as they relate to the present circumstances, I note the following. [34] The evidence before me is that Scott has been in full-time attendance at McGill University since 2008. His affidavit dated December 15, 2013 sets out some information about his time at McGill, including that during this time he suffered from anxiety, which was reflected in his apparent poor academic performance. He was eventually diagnosed with a social anxiety disorder in March 2012. [35] The affidavit suggests that for the school calendar years of 2008 to 2009, 2009 to 2010, 2010 to 2011, and 2011 to February 2012, Scott Woody attended McGill University. The evidence also suggests that from February 2012 until November 2012, he left school and was receiving treatment for his social anxiety disorder and that in January 2013 he returned to McGill but he only stayed for one month. During the time he was not at McGill, from February

2012 to December 2012, and again from February 2013 until September 2013, he worked part-time and apparently supported himself. Scott Woody's academic success, or lack thereof, at McGill is still, despite his having sworn two affidavits, a very open question as no documents or transcripts attesting to these facts have been provided. However, on the evidence available to me he seems to have been enrolled in McGill, with some interruption, for four full year terms. [36] What he is doing now is equally uncertain. In his first affidavit, he indicated that he was planning on enrolling in a two-year Oenolgy and Viticulture program at Brock University in St. Catharines, Ontario, near where he resides with his father at Niagara Falls. He says that he chose this program because he wants to be an assistant winemaker or viticulturist. His most recent affidavit suggests that rather than this being a two-year program, it is a four-year program and it is unclear to me whether or not he has actually started the first of four years or if he is still taking preparatory courses. [37] During his four years at McGill, Scott Woody was supported financially by his father. As noted earlier, I find this to be in accordance with an agreement between the parties. He is currently living in his father's home in Niagara Falls and attending classes. He also is working part-time at a winery and his most

recent affidavit suggests that he earns at maximum $154 per week. [38] Turning to the Farden factors, what is crucial to note is that Scott has already been supported by his father for four years of post-secondary education. He is currently enrolled in a course of study which, if successful, would be perhaps another four years on a full-time basis to graduate with a degree that would enable him to work in the wine industry. However, there is no evidence before me that such a degree is required for this kind of work and there is no evidence before me as to what the long-term prospects are for someone with such training. Nor is there information as to whether or not one's income or prospects would be substantially increased by taking these courses over what one would otherwise earn or expect in this industry without these courses. [39] In terms of eligibility for student loans, there is some evidence now before me that Scott Woody made an effort, some time ago, to apply for student loans but determined that he was ineligible because he lived with his father. [40] In terms of the third Farden factor, there is very much an open question in my mind on the evidence before me as to whether or not this is a reasonable path for Scott Woody to undertake, or whether he is simply, to the use the words from Farden, "going to college because there is nothing better to do". [41] Again,

information such as job prospects and/or income-earning ability after the considerable cost of perhaps another four years at university would have been of assistance in better determining that issue. [42] Scott has some ability to support himself through part-time employment. He does so and he also has, in the past, completely supported himself while he was not in school. [43] Scott is 24 years of age. As such, it is over five years since he has passed the traditional age of majority and the traditional age for termination of child support. [44] In terms of past academic performance, other than vague language as to lack of success at McGill, which may be explained in part by his social anxiety disorder, there is no information provided in regards to the courses he completed at McGill, and more appropriately, whether or not these courses would be transferable to his second academic enterprise. [45] In regards to the parties' plans, it is clear that Mr. Woody always intended for his children to go to university, and has been, to date, generous in regards to his support of his children. There is no evidence of plans the parties made during their marriage for the children's education, however that may be because the children were still quite young when the parties separated. [46] On balance, I am of the view that Scott Woody has passed the age at which it would be appropriate for

him to be considered a child of the marriage. For over four years, he undertook university education at McGill University, apparently unsuccessfully, but again few details were provided. [47] There is no evidence before me as to the logic of this new and somewhat unique educational program and specifically whether or not this program would result in substantial income earning ability, over and above what other people without such training would earn in this industry. [48] At some point, the answer to the question of whether or not parents are obligated to support a child's academic endeavours must be no. I am of course aware that if it was not for his parents' divorce, Scott Woody, at age 24, could not look to the court to compel either of his parents to support him. This child has been supported through four years of university education thus far, which he has not completed successfully, and he has not shown that the current course of study in which he is enrolled will result in substantial advanced economic opportunity so as to be long-term "money well spent". Finally, he has failed to show that he has an ability at this time to succeed. [49] As such I find that Scott Woody is no longer a child of the marriage and cannot look to his mother for a contribution towards his post-secondary education. Issue No. 3: Ms. Milner's Income [50] As I have determined that Scott Woody is

not a child of the marriage, I am not obligated to determine Ms. Milner's income for child support purposes. I will however, in the event that I am wrong, make some comments in that regard. [51] Much of the submissions made by counsel for the claimant, and much of the time analyzing the hundreds of pages of documents provided by Ms. Milner, appeared to be based on a theory that Ms. Milner has considerable wealth which is not apparent on her income tax return. [52] I find this to be an argument with no merit. Ms. Milner has earned income which I calculate to be $35,360 per year, being 34 hours a week at $20.00/hour for a 52-week year. This is income that she currently earns from her employment in Victoria, working full-time as a medical office assistant. [53] Ms. Milner had other sources of income in the past, but these are no longer available sources of income for her. Prior to her move to Shawnigan Lake, which happened in early 2013, she resided in a large, seven-bedroom furnished home in Victoria. By virtue of having such a large home, she was able to take in foreign students which resulted in additional income. Additionally, she had a licensed marihuana growth operation in her home for the purposes of supplying marihuana to those who had medical permission to consume it. There is no suggestion that she would undertake such an operation for illicit or criminal financial gain.

It appears from the evidence before me that she was very much a legitimate marihuana grower, but ultimately that the marihuana activity was of limited or marginal success. Once she sold the large home, those two sources of income ended. [54] Much has been said about missing or unaccounted for deposits of $20,000 or $30,000, which counsel for Mr. Woody identified from her analysis of Ms. Milner's 2012 bank and credit line statements. I accept Ms. Milner's explanation as to the deposits in her account and the moving of funds between accounts. I accept that she had some significant additional sources of income in 2012, namely that she cashed in some RRSPs, that she received the remnants of an inheritance from an aunt in England and that in the process of selling her home in Victoria, she sold much of the furniture the seven-bedroom home contained. Those things, coupled with the money from her medical marihuana grow operation, the rent she received from her boarders, and the child support and spousal support that she received, as well as various transfers from credit lines to her chequing and savings accounts and transfers between accounts, explained the deposits and the movement of funds between her accounts. [55] I would also say the movement of funds is not necessarily prima facie evidence of those funds being from an earned income source. [56] I am not sure in this case why Mr.

Woody undertook, through his counsel, a detailed analysis of Ms. Milner's bank accounts. He is entitled to do so, but there is nothing in his materials which suggests Ms. Milner had other areas of income earning abilities. This is particularly relevant when one is aware that he clearly had a close relationship with his son Todd. Todd lived with his mother through all of 2012 and 2013. Surely, based on the active role that Todd took in support of his father's position in this litigation, if there was a mysterious source of income available to Ms. Milner, Todd would have reported it to his father and it would have been made the subject of submissions. There is no such "smoking gun" evidence and I find that the efforts of Mr. Woody to try to analyze bank accounts to suggest a level of income far in excess of that which would be earned by someone who works full-time as a medical office assistant is a flight of fancy and nothing more. In conclusion, where I am required to, I would determine her current income to be $35,360 annually, income she earns as a medical office assistant. Issue No. 4: Mr. Woody's Child Support Obligations [57] Mr. Woody seeks, finally, an order declaring that he owes no further child support obligation to Ms. Milner. [58] I do not have a current Family Maintenance Enforcement Program schedule before me to outline support payments made by Mr. Woody to Ms.

Milner. Ms. Milner stated in submissions that Mr. Woody did not pay support for Todd for the months of December 2013 and January 2014. That support is due and owing. Prior to Mr. Woody terminating child support, the evidence before me seems to suggest that he was paying $2,233.20 per month in child support. Of that, however, I am not certain. That is what Ms. Milner received through the calendar year 2012 when Mr. Woody made two monthly payments of $1,866.60 for a total of $3,733.20 per month. Of that, $1,500 was spousal support, leaving a balance of $2,233.20 per month in child support payments. The evidence also suggests that Ms. Milner continued to receive this amount until November 2013. [59] Based on Mr. Woody's financial statement, I find his income for 2013 and 2014 to be $307,115, which constitutes a material change from his yearly income as reported in the original consent order. This increase in Mr. Woody's income, along with his obligation to pay support for only one child of the marriage, results in a different child support order per the applicable table amounts than the amount set out in the original order, thereby justifying a variation of his child support obligations per s. 14 of the Guidelines. He is a resident of Ontario and pursuant to the Guidelines table amount for Ontario he is obliged to pay $2,426 per month for child support based on his yearly income.

As such, if he was paying $2233.20 per month, he was under paying the amount of monthly support for 2013 by approximately $221 per month. In sum, as I have found Mr. Woody retroactively obligated to pay support in the amount of $2,426 per month for the 2013 calendar year, and if he underpaid that amount from January to November 2013, there are necessarily arrears for which Mr. Woody is liable. [60] Additionally, he apparently did not pay any child support for December 2013 and January 2014, which further add to the arrears owing. The Family Maintenance Enforcement Program is to amend their records accordingly. [61] The above is predicated of course on my belief that Mr. Woody paid $2,233.20 per month from July 2013 to November 2013. If he in fact paid more he is of course to be credited with the amount he paid. [62] Apart from those amounts, there are no funds for child support owing by Mark Woody to Kathleen Milner, subject of course, to Ms. Milner's application for a retroactive review of child support which I have, frankly, encouraged her not to undertake. That is ultimately her choice and she may, as a result of Mr. Woody's pending application to vary spousal support, wish to consider this application at some point in the future. That remains open to her but under the current orders, including this one, the only arrears that are owing are the arrears to be calculated based

on the variation of the order from January 2013 up to and including January 2014 to reflect the increase in Mr. Woody's income which I have included as part of these Reasons. Costs [63] Ms. Milner has been successful in this application. Ms. Milner was put to considerable expense to meet the demands of financial disclosure raised by Mr. Woody and she did so. Mr. Woody was not successful in the orders he sought, which were an order that Todd no longer be considered a child of the marriage as of April 2013 and that Scott continue to be a child of the marriage. Ms. Milner is entitled to her costs at Scale B. Considering the amount of detail she provided and the extent of the disclosure she had to make on the issue of her income, an issue which ultimately did not have to be decided, and considering that this matter was not argued over three-and-a-half days, I would fix costs at $2,500 inclusive of tax and disbursements. Those are payable forthwith. "The Honourable Mr. Justice Groves"