IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The parties are parents to an adult daughter (“H.”), who turned nineteen on December 13, 2016.  The mother and child live in Kitchener, Ontario and the father in Armstrong, British Columbia.  The child attends school at the University of Waterloo. 

[2]           Historically, the father and child have had very little communication and the relationship has been fractured.  The mother seeks an order for retroactive increase of child support, continued guideline child support for the adult child and a pro-rated share of the university extra-ordinary expenses.  The father seeks termination of child support and extraordinary section seven expense obligations effective when the child turned nineteen, or alternatively, termination of guideline child support but continued payment of a portion of the extraordinary expenses, after first considering hardship for his younger children.  The father is remarried and has two young children from that relationship, ages four and one. 

[3]           The parties resided in Ontario when their daughter was born on December 13, 1997.  Around October 2002, when the daughter was four, the parties had their final separation.  H. continued living with her mother in Ontario and the father moved west to work in such locations as the Territories or the Alberta oilfields, eventually living in the north Okanagan of British Columbia.

[4]           In 2003 the father commenced his relationship with his current wife.  They had their first child on February 24, 2012.  Their second child was born January 17, 2016.

[5]           The governing ISO child support order was made in 2007 based on the father’s 2006 tax return line 150 income of $33,752.  The father claims his income significantly decreased in 2010 when he was laid off for several months, but he did not report that decrease to the mother.  Instead, he continued paying at the court ordered rate.

[6]           On February 20, 2012 the father completed his hours and schooling and became a certified red seal electrician.  Thereafter his tax returns reflected significantly higher line 150 income:

[7]           Long before 2014, alienation existed between the father and his teen daughter.  Each parent blames the other parent for the cause of this alienation.  The father complains his calls and emails were never returned when his daughter was younger.  The mother and daughter claim it was the father making insufficient effort at contacting the child that led to the alienation.  The father has an e-mail from the daughter from when she was first in high school, which the father claims is typical of the alienation.  It reads, “My mom is asking you to pay half my tuitions…I need more money from you in five years when I go to school and you better buck up and start saving.”  This was in the context of the child seemingly refusing to speak with her father or visit with him whenever he was in Ontario.

[8]           In spite of the alienation, the father continued paying child support under the 2007 order.  This also included paying some extra-ordinary expenses, including $775 for dental/orthodontic work and $2,000 in 2014 for a portion of the child’s band trip to Europe.  This was in the context of an incident in 2014 when the father was in Ontario asking to see his daughter and the daughter sent a reply e-mail to her father stating her grandmother had just died so she was unable to see her father during the time he was in Ontario.  The truth was the daughter’s maternal grandmother hadn’t died and the daughter was just using this as an excuse not to see her father when he was in Ontario.  Again, this confirms the depth of their alienation at the time. 

[9]           The daughter graduated from high school in June 2015.  The daughter’s 2015 line 150 on her tax return was $11,131.00. 

[10]        After high school, the daughter dropped out of school for a year.  In Ontario the age of majority is eighteen but in British Columbia it is nineteen.  I am satisfied the applicable law is in the province of the payer, thus regardless of whether the child was making diligent efforts at getting into post-secondary school or alternatively finding full-time employment, she was still under age nineteen, which is the age of majority in British Columbia, and she was not sufficiently independent so as to no longer qualify for child support.

[11]        In December 2015 (six months after the child graduated from high school) the mother filed her child support variation application, requesting a review of retroactive amounts based on the father’s increased income and also requesting child support continue after the daughter turned nineteen.  She also wanted the father to pay half of the tuition and book costs for the daughter’s university.  The father initially told the mother that he would pay half of the daughter’s tuition and book costs if the mother would abandon her December 2015 application.  The mother chose to proceed with the application.

[12]        In September 2016 the daughter commenced attending post-secondary school at the University of Waterloo, seeking a degree in Honours Arts and Business, which is a five year co-op program.  Fortunately, her mother, who is a lawyer in Ontario, works full-time for the University of Waterloo, such that the daughter’s tuition costs are only half the amount of a student whose parent does not work for the university.  A student without that advantage pays approximately $7,300 per year in tuition and $2,500 per year in books.  The daughter’s tuition costs are half, namely $3,650 per year.  The child could have continued living at her mother’s residence, but she chose to seek some independence by residing is a different residence with other students, near the school.

[13]        On December 13, 2016 the daughter turned nineteen, thus guideline child support obligations continued at least through December of 2016.  The father submits that due to the alienation with his daughter and hardship on his new family, his child support obligations should end effective the time his daughter turned nineteen. 

[14]        This trial commenced June 24, 2016 and was adjourned for continuation October 28, 2016.  At court on June 24th, I made an interim without prejudice order, imputing $111,300 income to the father and ordering him to pay $1,014 per month in child support starting July 1, 2016.  When making the interim ruling, I stated the daughter could go a long way towards helping her cause if she were to reach out and speak with her father.

[15]        When the trial continued on October 28, 2016, I was shown multiple emails sent by the daughter to her father.  They were respectful and in no way inappropriate.  The father, still bitter over the estrangement, chose not to respond to the first five of those polite emails and when he responded thereafter, he didn’t use a respectful tone.  This e-mail history is as follows:

[16]        In late 2015 the oil industry in Alberta came upon difficult times due to global events beyond the control of the father.  He managed to be able to continue working as an electrician in the Alberta oil patch until August 21, 2016 when he was last employed.  This unemployment situation was industry wide and can in no way be attributed to any actions of the father.  The father had lots of motivation to find employment, given he had financial obligations for his current family of four, in addition to his obligations to his teen daughter.

[17]        The father has for years, in addition to his electrician employment, annually been employed for part of each year at Haida Gwaii on Vancouver Island as a hunting guide.  He had choices to make.  He could look for employment as an electrician in the Okanagan.  He rejected that idea, choosing alternatively to rent out his Armstrong residence, buy an inexpensive residence in Haida Gwaii from money obtained through a second mortgage on the Armstrong property, move his family of four to Haida Gwaii, pick up work as a hunting guide in the hunting season, and in the interim, take an online course which would qualify him for starting a self-employed electrician business in Haida Gwaii. 

[18]        On November 15, 2016 the father’s family moved to Haida Gwaii.  The father could have better managed completing his on-line course to qualify for his electrician’s business licence.  When the matter was last in court on February 6, 2017, the father was frustrated with the delays in obtaining that licence.  He explained that the financial pressures and the move to Haida Gwaii were particularly hard on his wife and it was putting a significant strain on their relationship.  He believed that if he didn’t soon get his business licence and start receiving income as a self-employed electrician, the strain on his family would be too much.  His wife was last employed in 2012 and their arrangement has always been her being a home-maker since the birth of their first child.  Their baby is now fourteen months old.

[19]        The age of majority in Ontario is 18 but in British Columbia it is 19.  The applicable law is the location of the person paying the child support.  The paying father lives in British Columbia, thus the applicable age of majority is 19.

[20]        The daughter, born December 13, 1997 graduated from high school in May 2015 at age 17.  She then took a year off from school and worked, earning $10,441 in 2015.  She continued working in 2016 until she started attending the University of Waterloo full-time in September 2016.  It wasn’t until December 13, 2016 that she turned 19.  The daughter always intended to pursue post-secondary education.  I find that the father’s guideline child support obligations, at the minimum, continued until the daughter’s 19^th birthday. 

[21]        Section 3(1) of the Federal Child Support Guidelines requires the amount of a child support order for a child under the age of majority to usually be the guideline amount plus determined section 7 extra-ordinary expenses.  Historically, the following child support Orders were made:

[22]        The following lists the father’s historic actual annual income,  which if used as guideline income, would have required monthly payments as set out in the table:

[23]        In D.B.S. v. S.R.G., 2006 S.C.R. 231, the court set out the four factors to be considered when addressing retroactive child support claims:

[24]        The governing child support order at the time was the October 4, 2007 order requiring the father to pay $315 per month based on $33,752 guideline income.  The mother didn’t apply to vary that order until December 7, 2015.  She is a lawyer in Ontario, but claims she was unaware she had a right to apply for the review earlier.  I don’t believe that.  The two parents did not communicate well, and they were not on good speaking terms.  The genesis of their non-communication goes back to the mother’s belief that the father had for the most part abandoned his daughter since their separation in 2004.  The father’s version is that the mother frustrated his efforts at attempting to communicate with his daughter.  Regardless of the cause, the two parents were very cold with each other and they didn’t communicate well.

[25]        The mother knew the father was well along the way to becoming a ticketed electrician, but she never questioned whether his income increased after he became certified, nor did he volunteer to her that his income tripled once he obtained the certification in February 2012.  That said, the father had a positive duty at common law to disclose his tripled income to the mother so that she could then make a more informed decision regarding whether to apply to vary child support.  At no time prior to her filing her application had he disclosed his income.  In her application to vary, which was served on the father in December 2015, she recorded that she thought his income was around $85,000.  His prior year’s income at that time was actually $112,295.  He knew she had significantly under-estimated his income, yet he still remained silent for some time regarding his correct income. 

[26]        An example of the mother’s attitude towards the father (whether justified or not) is exemplified by the following email the mother sent the father on November 26, 2014:

[27]        In all of these circumstances, I think it fair to surmise that the mother likely knew the father, subsequent to his becoming a ticketed electrician in 2012, had a significant increase in income thereafter.  However, she had no understanding of the full extent of his increased income and clearly he never communicated it to her as he is required to do at common-law.  The cold war between the parents likely had something to do with the father not communicating his increased income and the mother not asking about it.  All of this was obviously contrary to the best interests of the child.  The mother’s failure to apply earlier is a legitimate factor to be considered, but it is a less significant factor than the father’s blameworthy conduct of not reporting his 300% salary increase, under the guise of claiming he had no legal duty to do so. 

[28]        The order was registered for enforcement through the Family Maintenance Enforcement Program.  The father claims he thought it was the duty of the program to let him know if he needed to increase his child support payments.  Those familiar with the law in this regard know that such a mistake of law creates no defence to the legal duty at common law he had to notify the mother of his significant increase in income.  Then she would have been in a better position to make an informed decision on whether to apply to increase the child support payable.  His failure to disclose his income to the mother creates significant blameworthiness on his part. 

[29]        A paying parent has a positive duty to disclose significant increases in guideline income.  I do not accept that the father believed he had no duty to disclose his significantly increased income.  Even applying his faulty logic that he thought the FMEP would tell him if he needed to pay more, if he had asked anyone in authority at FMEP whether he had a positive duty to disclose his 300% increase in his income since the last order was made, I have no doubt he would never have been told he had no duty to disclose.  One must always remember the focus is on the best interests of the child.  The parents may be at war with each other and in such circumstances the parents may both lose focus on the best interests of the child.  It was clearly in the best interests of the child for the father to not hide behind his actual, yet undisclosed income. 

[30]        This begs the question of what financial hardship, if any, the daughter suffered between 2012 and 2016 as a result of the father not reporting his full income and paying a proper guideline amount of child support.

[31]        The mother’s line 150 income during the years in question was as follows:

[32]        The daughter was in grades 9 through 12 in the relevant years.  The father did contribute $2,000 towards a one month school trip the daughter took to Europe in 2014.  He also contributed $1,600 for half of the out of pocket costs for braces for the daughter.  In July 2014 the father paid $250 towards the daughter’s teeth bleaching and in September 2015 he paid $750 towards the dental bill for the daughter’s wisdom teeth being pulled.  In 2015 the daughter earned $10,441 from her employment. 

[33]        In contrast, if the father between 2012 and 2016 when the daughter turned nineteen, had paid guideline support based upon his timely disclosure of prior year’s tax returns as guideline income, he likely would have been ordered to increase child support commencing July 1^st of the following years.  As a result, he would have underpaid $25,812 as of December 31, 2016:

[34]        In summary, the circumstances of the child, during her high school years, would have improved if the father had paid child support based on his actual income guideline amount.  That said, she was able to make a month long trip to Europe during that time.  Her necessities were met financially.  Needs and wants are two separate things.  No doubt some of her wants could have been better addressed if more child support had been paid.  One must also recognize that with the father not paying his fair share for the needs of the child, the mother likely disproportionately paid for some of those needs. 

[35]        The biggest need not being filled was the resolving of the daughter’s disconnect with her father.  Their strained relationship was to the point where the daughter no longer wanted to see her father.  The father hasn’t seen the daughter for twelve years.  On one occasion, she even lied about claiming she could not see him when he was in Ontario because her grandmother had just died, when in fact, the grandmother had not died.  Such was the dysfunction between the father and daughter.  Unfortunately, no amount of money can meet the emotional need of a healthy relationship between the daughter and father.

[36]        This is a very live issue in this case.  In 2004 the father started his relationship with his current wife.  They now have two children, a child born in February 2012 and a second child born in January 2016.  The father’s current wife has been unemployed since before 2012.  The father lost his lucrative job in northern Alberta and has been unemployed since August 2016.  Since then his family is supported by his Employment Insurance of $1,025 every two weeks, which is $26,650 per year.  His EI expires in December 2017.  In November 2016 he moved his family from Armstrong, B.C. to the remote Vancouver Island village of Haida Gwaii. 

[37]        In D.B.S. (supra), Bastarache J. addressed hardship circumstances and stated at para 115:

[38]        However, in D.B.S. (supra), the court went on to point out in para 116:

[39]        There is undoubtedly hardship that will follow in the current home of the father if a retroactive order increasing child support is made.  Much of this hardship is the result of the father’s blameworthy conduct of not timely reporting his increased income.  Some of the hardship is the result of the mother’s delay in filing her application to vary child support.  Regardless of historical blame, there is no doubt the father’s current financial situation is nothing like what it was in past years.  This was caused by the downturn in the overall economy in the oil industry, and not by any act of the father.  I do not find him currently intentionally underemployed.  He has lots of motivation to find employment.  He has lots of motivation in keeping things together with his current family, thus this is not a situation of his being intentionally unemployed to avoid child support to his teen daughter in Ontario.

[40]        Notwithstanding the hardship caused to the father’s current family, some significant retroactive order should be made, given the blameworthy conduct of the father not reporting his 300% increase in income.  The hardship factor and the factor of the mother delaying her application to vary the support order are relevant factors that can best be addressed by considering the length of retroactivity of the variation order. 

[41]        Bastarache J. in D.B.S. (supra), attempted to address this by stating at para 118:

[42]        It is impossible to have an exact approach for all families given the unique circumstances of each case.  This case is a classic example of the multiple factors to be considered.  If blameworthiness of the father was the only significant factor, then it would override all other factors and result in an order retroactive to the time the increased amount should have been paid.  However, some blame is attributable to the mother not making a more timely application and some real consideration must be given to the hardship imposed on the two young children currently in the father’s care and the fact that the father is currently unemployed and unlikely to return to his former more lucrative employment before the overall price of oil increases significantly.

[43]        In D.B.S. (supra), the court did give a general rule that retroactive awards should not exceed more than three years from the date of formal notice.  The application to vary was filed in September 2015 and served on the father in December 2015.  One must also consider that even if the father doesn’t currently have the capacity to pay the retroactive arrears, and even if he doesn’t have the ability at any time in the near future to do so, an award could still be made such that it could be registered against the father’s two real estate properties for eventual enforcement with the re-mortgaging or selling of the property.

[44]        One last factor to consider is that since July 2016, the monthly support order has been increased from $315 per month to $1,014 per month.  It was based on his 2016 financial statement.  The order was on an interim without prejudice basis until I could make a final ruling with this written decision.

[45]        As stated earlier, I have found that the underpayment would be $25,812 if I made a retroactive order which was consistent with the father’s guideline income, if he had properly and timely reported that income.  I earlier summarized that calculation as follows: 

[46]        Given my earlier finding that the mother either knew or was reasonably blind to the fact that the father had significantly increased income, and given my finding that there is a hardship caused to the father’s two younger children by making the full retroactive order requested, but given my over-riding finding of blameworthiness of the father, the bulk of the retroactive request should be granted.  Given all the factors I am to consider, I find that the just thing to do is to make the retroactive order date back to January 1, 2014 as follows:

[47]        The onus is always on the parent seeking child support for adult children.  That said, there is a virtual presumption in favour of some form of support for adult children seeking their first post-secondary schooling degree or diploma.  The law in this regard is reflected in what has become known as the “Farden Factors”, referencing a decision of Master Joyce in a 1993 BCSC decision where eight factors were set out:

[48]        There is no disputing the adult child is in fact enrolled full-time at the University of Waterloo in Ontario.  Perhaps the child could have made better efforts applying for grant funding, but there is no doubting for the first four years after graduating from high school, the child will only qualify for student loans after disclosing and factoring in parental income.  Her university plans are appropriate.  Both her parents obtained post-secondary education and they are both hopeful their daughter can also get a degree.  The child is contributing financially, but that is significantly offset by her choosing to move from her mother’s home and into student housing.  There is nothing wrong with student housing, provided it is a viable financial plan.  In the case of this child, she better understands that her choice in this regard may not have been a financially sound decision, because she is intending for her second year of university to again reside at her mother’s home.

[49]        The only “Farden Factor” needing much consideration in this case is factor number eight which implies that if a child unilaterally terminates a relationship from a parent, then once that child hits the age of majority, subsequent support may be either reduced or terminated.  I have paid particular attention to the facts presented and even detailed many of those facts in this written decision.  There is no disputing the relationship between the father and daughter has been strained nearly to the point of alienation.  However, it can’t be said this alienation was all unilaterally caused by the daughter.  She and her mom do own part of it, but the father, by his own choosing of leaving Ontario and absenting himself from the life of his daughter for an extended period, has also greatly contributed to this alienation.  Perhaps the one silver lining with these court proceeding has been the encouraging of the daughter and father to repair their strained relationship.  I am told they are now making a much better effort at having more regular communication and that the tone is more respectful.  Regarding the eighth “Farden Factor”, it can’t be said the child has unilaterally terminated the relationship.  Both have a part to play in now repairing that relationship.  The adult daughter must appreciate that she must remain willing to make a reasonable accounting to both her parents with respect to her post-secondary education progress.  She is no longer an age of minority child, thus financial support from either of her parents requires her willing cooperation with keeping the lines of communication open.

[50]        Rule 3(2) of the Federal Child Support Guidelines sets out two methods of addressing child support for adult children, namely requiring guideline amount or putting the guideline amounts aside and simply applying a means and ability test.  Rule 3(2) reads:

[51]        The approach under rule 3(2) (a) is more appropriate when the child is still living in the home of one of the parents and is unemployed or only minimally employed, while attending school full-time.  That fact pattern aligns more closely with child support obligations for minor children, which is what rule 3(2) seems to try addressing.  If guideline child support is to apply, the court would then separately determine whether the post-secondary tuition expense would be an allowable section seven extra-ordinary expense after considering the means of the spouses and those of the child.

[52]        The approach under rule 3(2) (b) is more appropriate where the child is no longer living with a parent, or the child is well beyond the age of majority.  For example, a child that is four years out of high school can then apply for student loans in Ontario without the need of reporting parental income, and with those student loans often comes non-repayable grants or bursaries.  This approach requires having regard to the means, needs and other circumstances of the child and the financial ability of each spouse to contribute.

[53]        Which approach is more appropriate in the case at bar?  This is a difficult question given the father has been, through no fault of his own, unemployed since August 21, 2016.  His family of four are living on his EI benefits.  His “means” for future payments are significantly reduced from what his means were when employed in the Alberta oil batch.  For the first semester of university, the daughter was still a minor, thus child support was still based on guideline amounts (with imputed income) and a pro-rated share of the section seven tuition and education costs.  The imputed amount was $111,348 and the guideline payments have been $1,014 per month, plus a lump sum payment of half the tuition and book expenses.  

[54]        The imputed amount was based on the father’s anticipated line 150 income for tax year 2016.  At some point, that imputed income amount must be reduced to 2017 actual revenue amounts, unless the court finds intentional under-employment in 2017.  Generally, prospective (as opposed to retroactive) child support is expected to come from income revenue and not from asset disposal.  An exception is when the paying parent is intentionally under-employed.  I don’t find intentional under-employment on the part of the father.  My answer may be different in the future, but on the facts before me now, there is no under-employment. 

[55]        I think the better approach for the case at bar, assuming the daughter in fact returns to live with her mother for the next school year, is to apply the Guideline Rule 3(2) (a) formula.  The father, on EI, earns the equivalent of $26,650 per year.  He also hopes to earn income for guiding.  With guiding, he earns $125 per day and he works as a guide between June and September.  This may result in $20,000 of income.  He also hopes to get income from being self-employed as an electrician at Haida Gwaii.  He hopes the combined amount of income will be more than he receives on E.I.  He really has no idea what his actual income will be for 2017, but it will likely be around $35,000 to $50,000.  Time will tell.  There are so many unknowns regarding his 2017 income.  I do continue inputting the $111,349 amount through April 2017 in accordance with the June 24, 2016 interim order, thus owning $1,014 per month for those four months.

[56]        Starting May 1, 2017, I impute income to the father in the amount of $42,000 and I order him to pay guideline child support in the amount of $383 per month, on the first day of each month, commencing May 1, 2017.  The father is to disclose to the mother a copy of his 2016 tax return as soon as he has it available.  He is to disclose to the mother a copy of his 2017 tax return by May 15, 2018 and similarly, a copy of his 2018 return by May 15, 2019.  In addition, if the father again finds full time employment in the oil patch, he must forthwith advise the mother by text, email or in writing and he must also disclose a copy of his first two pay-stubs from that employment forthwith upon receipt.

[57]        It is impossible to determine in advance when the obligation for paying guideline child support to an adult child ends.  Clearly, if the child stops enrolment from school, the support obligation may end.  Similarly, if the child enters into some significant relationship where that partner is supporting her, this could trigger the ending of the father’s legal obligation.  If the child is four years past high school graduation (which is June 2019), she no longer is required to report parental income when obtaining student loans and grants.  By then she will also be earning more through her internship program.  That might end the father’s legal obligations, but not definitely so without agreement or a court order.  Otherwise, the obligation may continue until the daughter graduates.

[58]        Now, turning my mind to section seven extra-ordinary expenses.  The father has agreed to pay half the tuition expenses.  I now order that the father continue paying half of the out of pocket tuition expenses, with those payments to be made no later than seven days prior to the commencement of classes for that school term.

[59]        Effective January 1, 2014 guideline income was $100,980, resulting in $929 monthly child support owing on the first day of each month commencing January 1, 2014 through and including June 30, 2014.  The total amount owing for this 6 month time is $5,574.  The father paid $1,890 ($315 X 6), thus the balance underpaid is $3,684. 

[60]        Effective July 1, 2014, guideline income was $117,199, resulting in $1,063 monthly child support owing on the first day of each month commencing July 1, 2014 through and including June 30, 2015.  The total amount owing for this 12 month time is $12,756.  The father paid $3,780 ($315 X 12), thus the balance underpaid is $8,976.

[61]        Effective July 1, 2015, guideline income was $112,295, resulting in $1,022 monthly child support owing on the first day of each month commencing July 1, 2015 through and including June 30, 2016.  The total amount owing for this 12 month time is $12,264.  The father paid $3,780 ($315 X 12), thus the balance underpaid is $8,484.

[62]        Effective July 1, 2016, imputed guideline income was $111,348, resulting in $1,014 monthly child support owing on the first day of each month, commencing July 1, 2016 through and including April 1, 2017.  The total amount owing for this 10 month time is $10,140.  I leave it to FMEP to do the recalculation.

[63]        I find that the adult child is still a child for guideline child support purposes, pursuant to Federal Child Support Guidelines Rule 3(2) (a).

[64]        Effective May 1, 2017, imputed guideline income for the father is $42,000.  He shall pay child support in the amount of $383 per month on the first day of each month commencing May 1, 2017.  He also continues having the obligation to pay half of the tuition fees for the daughter as a section seven expense, with those payments to be made no later than seven days prior to the commencement of classes for that term.

[65]        The father is to disclose to the mother a copy of his 2016 tax return as soon as he has it available.  He is to disclose to the mother a copy of his 2017 tax return by May 15, 2018 and similarly, a copy of his 2018 return by May 15, 2019.  In addition, if the father again finds full time employment in the oil patch, he must forthwith advise the mother by text, email or in writing and he must also disclose a copy of his first two pay-stubs from that employment forthwith upon receipt.

[66]        Recalculated arrears as of June 30, 2016 are as follows: