[1]           D.T.H. (the “child,” the “adult child,” the “son”) was born [omitted for publication]. W.V.A. (the “father”) and J.D.H. (the “mother”) lived near Dawson Creek, B.C. and they never had more than a dating relationship, including never living together. The mother has always been the primary caregiver of the child.

[2]           This case involves six child support issues where the parties seek redress:

[3]           On July 5, 2000, a Provincial Court Judge in Dawson Creek made a consent order giving the mother final sole custody and sole guardianship of the child and ordering the father to pay interim child support of $300 per month. In1999 the father’s line 150 total income on his tax return was $46,202.00, which in 2007 would have normally had a Guideline support amount of $429 per month. The agreed upon $129 per month reduction reflected the mother’s plan to move with the child from Dawson Creek to Kelowna and the extra costs this would add to the father exercising access to the child. His employment was in the oilfields. At that time, the main dispute between the parties was not over child support amounts, but rather, over parenting time issues. The mother wanted to greatly restrict the father’s access to the very young child and the parties spent a lot of money on lawyers, trying to work out the parenting time arrangements. The parties had no healthy communications, thus most communications were through lawyers.

[4]           In the fall of 2000, shortly after the consent court order was made, the mother did move to Kelowna to attend school and Kelowna became her permanent residence thereafter. Her parents also eventually moved to Kelowna. The $300 per month interim child support order continued and the child support issue did not come to a permanent resolution. The mother was represented by counsel throughout that time.

[5]           In 2006 the father also moved from Dawson Creek to Kelowna, primarily so that he could be closer to the child and have more parenting time. Again, the mother tried restricting the father’s parenting time, claiming the visits were disruptive to the child. The Dawson Creek court file was transferred to Kelowna in 2006 when the father applied for specified parenting time. The mother then sought a review of the child support order. 

[6]           On October 20, 2006, the father provided his 2003, 2004 and 2005 tax assessments. The first Kelowna order was made December 14, 2006, primarily regarding parenting time. The child support issue was adjourned for a later court date.

[7]           On January 25, 2007, Judge Cartwright imputed income to the father of $42,000 and increased interim child support to $388 per month. Judge Cartwright further directed the father to file an updated financial statement, primarily to capture 2006 income and the change of his circumstances since moving to Kelowna.

[8]           On March 21, 2007, the late Judge Wallace ordered that the father, by May 25, 2007, provide to counsel for the mother, a copy of his 2000, 2001, and 2002 tax assessments and also information regarding the 2006 sale of his Sexsmith, Alberta residence. The consent order also recognized that the mother had permanent custody of the child but both parents were now named as guardians.  

[9]           On June 7, 2007, Judge Burdett made an interim order that the father pay increased child support of $646 per month starting June 1, 2007. The order does not expressly state Guideline income applied to this interim order, but the father did produce his 2006 tax return to the court that date, which showed line 150 income of $69,133.00 and applying that amount with the Guideline table, $646 per month was payable. The order again required the father to file and serve copies of his 2000 through 2006 tax returns and copies of all his bank statements for the past three years, with a court review on July 26, 2007. As stated earlier, the father, prior to that court date, already provided his tax returns for 2003, 2004 and 2005, and brought to court that day a copy of his 2006 return, so the heart of the disclosure order was the father’s need to provide his 2000, 2001 and 2002 returns and the bank statements for the prior three years. The father did not timely comply with this disclosure order.

[10]        On July 26, 2007, there was insufficient court time available for the review, so it was adjourned to August 1, 2007, for review. On August 1, 2007, I was the presiding judge in the family list court. The father still had not complied with the earlier disclosure order of Judge Burdett. I imposed a $500 penalty on the father for his failure to comply with that disclosure order. (The father eventually paid the $500 penalty as ordered and that amount was transferred to FMEP for payment to the mother.)

[11]        With that August 1, 2007, court date there remained unresolved child support issues and parenting time issues. In a perfect world, all of these issues would have been dealt with in one final hearing, but there was some interim parenting time order already in place and the more pressing issue seemed to be getting a final child support order. I directed, by consent, that the child support issues be addressed separately and I adjourned it to the Judicial Case Manager (the “JCM”) to fix a one day hearing regarding child support. The parties and/or their counsel attended at the JCM office that very day, but told the JCM that they wanted to get the matter back before a judge on a family list day in the future, before fixing the one day hearing. There seemingly were two reasons: counsel for the mother wanting to receive the father’s updated financial statement to confirm whether a one day trial would be needed; and counsel for the mother was contemplative of getting off the record if it could not be resolved without a trial. The JCM adjourned the matter to the court registry to fix a later date when it could again be in family list court, after disclosure was completed. On August 27, 2007, the father did file with the court his 2000 through 2006 Income Tax Notices of Assessment.

[12]        Around this same time of August/September 2007, the mother could no longer afford her lawyer, resulting in both parties being unrepresented by counsel. No further court review date was ever set, nor was there ever any request to bring it back to court for the next 12 years, even though the needed financial disclosures were available by August 27, 2007. The mother claims she lost focus on further pursuing the court case and she provided multiple reasons: her focus was more on meeting the needs of her ADHD child; she could no longer afford a lawyer; she was frustrated with earlier court delays caused by the father’s late financial disclosures; she did have an interim child support order of $646 per month based on the father’s 2006 income; the father had moved from Kelowna in the fall of 2007 and he was no longer seeing the child. For multiple reasons, she simply never applied to get it back in court over the next 12 years.

[13]        As stated, in the fall of 2007, the father moved from Kelowna and stopped having any contact with the child, although he continued paying the $646 per month child support. The reason for this final separation between the father and his then seven-year-old son is noteworthy. In the fall of 2007, when the child was visiting at his father’s home, the child demanded that the father give him the cell phone because he wanted to call his mother. Given the significant conflict between the parents, the father did not want to involve the mother with his parenting time visit, so he did not give the phone to the child. The child told the court that he picked up a knife, brandished it at his father, and told his father, “Give me the fu….. phone or I will kill you.” The father immediately thereafter took the child home to his mother. That is the last time the father had any parenting time with the child and before the end of 2007, the father had moved from Kelowna. This conduct of the child in the fall of 2007 is a good segue into a review of the special needs of the child.

[14]        It is a fact that the child had multiple significant behavioural issues from a young age. When only three-years-old, the child was acting out in inappropriate sexual ways with other young children. This conduct continued through pre-school and kindergarten. The child had unusually high impulse control issues and anger management issues. The mother testifies that the behavioural issues were so significant over the years that by grade seven, in spite of many extra resources being put into place such as having a one-on-one worker at school with the child, her son was unable to continue in the mainstream school system. The schools believed the child had ADHD. For the most part, the child was not medicated for this, although medication was briefly attempted when the child was still attending public school. From grade seven until he stopped doing school in grade nine, the son was home schooled by his mother. The mother also had other full-time employment, thus her days were very busy, and she relied on her parents for extra help.

[15]        Both the mother and the son believe the behaviours of the son have greatly improved in recent years and that he has outgrown much of his childhood antics. The son has proven himself to be a hard worker. He is an avid hunter and possesses a firearms licence. He is not medicated for ADHD and has not been medicated for many years. He has no family doctor and uses walk-in clinics if he needs medical assistance. He is physically healthy. He prides himself in being a hard worker.

[16]        In 2017 the line 150 gross employment income of the then age 18 son was $3,739. As a 19-year-old in 2018, his employment income was $10,726. For 2019 he was mostly self-employed as an irrigation specialist, installing and maintaining residential automatic watering systems. He has yet to file his 2019 tax return which is not due until September 2020, given the COVID extension. He and his mother estimate his gross revenue for 2019 was somewhere between $75,000 and $80,000, but he had start-up costs and most of that gross revenue was put back into his company, such that there was no net revenue. He hopes in 2020 to have significantly higher gross and net revenue. His company has been heavily subsidized by his mother (she does his bookkeeping without charge and she gifted him some start-up money) and his maternal grandfather (he works at the job sites without charge).

[17]        The son continues to live with his mother, who has a 2019 line 150 income of $63,626. They live in very humble conditions in a small trailer where the living room has been converted into the child’s bedroom. 

[18]        The father has, for the most part, faithfully paid through FMEP the $646 per month child support required by the June 7, 2007, interim order. The father made no further payments after the child turned 19. 

[19]        FMEP was caught in the middle of this dispute over whether ongoing child support was payable for the adult child after the child’s nineteenth birthday on [omitted for publication]. On April 2, 2019, the father applied to the court to terminate the July 7, 2007, interim child support order. On April 30, 2007, the mother filed a counter-claim for retroactive child support going back to when the child was born in 1999, and she further sought a finding that the adult child was still entitled to child support and she sought retroactive section 7 expenses. FMEP records reflect the father paid $107,465.02 between March 1, 2002, and June 8, 2020. With interest and penalties included, the FMEP statement shows a balance owing of $4,111.58 as of June 8, 2020. Of that balance, $3,876 is for six months of ongoing maintenance charged when the father stopped paying, after the child turned 19. 

[20]        On February 18, 2020, Judge Heinrichs made an interim order that if FMEP collected any further money from the father, it was to be held by them pending the outcome of this hearing. The father, in court, provided the mother with his 2017 and 2018 notices of assessment.

[21]        On June 8, 2020, a pre-trial conference was held with Judge Doerksen, where the judge ordered that the father disclose, 30 days prior to trial, an updated Financial Statement, including his tax assessments for the years 2013 through 2019. The mother was also ordered to disclose, 30 days prior to trial, medical records and statements which stated any diagnoses or prognoses of the child. 

[22]        The line 150 tax records and assessments for the father disclose the following:

[23]        The case of Dring v. Gheyle (2018 BCCA 435) is instructive on this issue. In that case the child was born around 1994 and was age two when the parents separated. In 2003 the parties consented to an interim order where that father paid $393 per month child support. In 2010 the mother requested and received further financial disclosure and the father voluntarily increased child support to $450 per month, which continued until 2013 when the child turned age 19. The mother, after the child turned 19, made a court application for retroactive child support. The trial judge found that the son had not made appropriate efforts to find employment, following what had been a poor performance in his secondary education. Notwithstanding, the trial judge made a finding that the adult child was still entitled to child support and ordered retroactive child support for the years 2013 to 2016, and ongoing support for so long as the son remained a child of the marriage. On appeal, the majority of the court found that the adult child was no longer a child within the meaning of the Family Law Act and therefore there was no jurisdiction to make a retroactive child support order. In reasons concurring with the result, Hunter JA found that the court did have such jurisdiction, despite the fact that the son was no longer a child of the marriage, but that on the facts, an order for retroactive support should not be made.

[24]        The child in the case at bar was born [omitted for publication]. When the June 5, 2000, consent interim order was made requiring the father to pay $300 per month child support, that order was made on the understanding that the father’s 1999 income was $46,202.00, and I believe it was also made on the understanding that the mother hoped to soon be moving from Dawson Creek to Kelowna, knowing the move would result in higher parenting time costs for the father. That said, while the custody and guardianship order in favour of the mother was a final order, it was understood that the child support order was only an interim order, and the door was still open, at a full child support hearing, if pursued within a reasonable amount of time, to seek retroactive child support back to the time of the birth of the child nine months earlier. Different court hearing dates were scheduled, however they never proceeded, for reasons other than lack of court time. The retroactive claim was next advanced in 2006 in Kelowna when the matter was in family list court with the father’s request for parenting time and the mother’s counter request for retroactive child support.

[25]        The interim child support variation orders made in family list court on January 25, 2007, and June 7, 2007, only dealt with prospective child support and did not address any retroactive claims.

[26]        By August 1, 2007, when the matter was before me on a family list court date, I directed that the matter on that date go to the Judicial Case Manager’s office to fix the final hearing for all outstanding child support issues. When I made that direction, the father had already disclosed his 2003, 2004, and 2005 tax assessments on March 15, 2007, and his 2006 tax assessment when he came to court on June 7, 2007. He was penalized $500 on August 1, 2007, for not completing the other portion of the financial disclosure order which also required him to disclose his 2000, 2001 and 2002 tax returns, as well as his bank statements for the prior three years. However, he did disclose all of these other tax returns on August 27, 2007, and a contested hearing would have been possible any time thereafter. Since August 27, 2007, the parties seemingly abandoned requesting a contested hearing regarding retroactive child support.

[27]        The mother’s current application for retroactive child support was a counterclaim filed April 30, 2019, when the child was already age 19. The 12 year gap between when the final hearing could have been held in 2007 and when it was finally heard in August of 2020 is, in these circumstances, a bridge too far. Putting aside the legal issue of whether the court has jurisdiction to make the retroactive order sought given the application was made after the child hit the age of majority, it would be unfair to now go back and review what might have been a proper child support order between the 1999 birth of the child and the making of the June 7, 2007, order, which the parties, by their actions and acquiescence, chose not to ever set for final hearing, even though the needed disclosures were in place by August 27, 2007. 

[28]        I think the Dring decision should not be interpreted so narrowly as to suggest that the courts always lose jurisdiction once the child turns 19. The triggering event is not just turning the age of majority, but rather, doing so in circumstances where it cannot be said that the child is unable because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his parents. 

[29]        It is always a positive duty of all parents to keep the primary caregiver of their child advised of any significant changes in financial circumstances. This allows the guardian with primary care to then be able to make a more informed decision about whether to pursue any court ordered increase in child support. And it also opens the door for a variation downward if the financial circumstances of the paying parent have worsened. These two parents seemingly were unable to have healthy communication, with both demonizing the other.

[30]        Had the father done proper financial disclosure, it would have actually resulted in him paying less child support. For nine of the ten years between 2009 and 2018, the father’s tax returns show that his gross income was actually less than the $69,133 amount the June 1, 2007, interim order was based upon. Only in 2014 was his income higher (line 150 gross income of $80,774). When recalculating those ten years based on actual line 150 gross income, the father overpaid child support by $21,792 (2009 $4,356; 2010 $3,312; 2011 $2,700; 2012 $1,752; 2013 $1,248; 2014 -$1,320; 2015 $5,604; 2016 $2,832; 2017 $60; 2018 1,248 = $21,792). 

[31]        The only two tax years for which I have no information is 2007 and 2008. There was never any court order requiring him to disclose his income those two years, but it is likely that in both of those two years his income was higher than $69,133. Those two years were followed by the 2009 housing crash in the USA and for years thereafter the father’s income was substantially lower. The father’s income for 2007 and 2008 would have needed to be in excess of $180,000 per year before it could be said that the father had not overpaid child support between 2007 and 2018. I am clear the father’s income in 2007 and 2008 never came anywhere close to the $180,000 per year amount.

[32]        The mother’s claim for retroactive child support prior to the child turning age 19 must fail. That said, the $21,792 overpayment of the father was clearly to the betterment of the child and that money has already all been paid out, thus the court is not inclined to require any repayment for overpayment. The father is not requesting any such repayment given he never made any timely request to the court for such a reduction.

[33]        While the courts have authority to consider retroactive claims back to the time of the child’s birth, as a matter of public policy, the courts usually do not go back further than three years for such retroactive claims, unless it can be said that the paying parent was significantly deceptive in failing to disclose his/her true income. This is likely why the presiding judge at the pre-trial conference on June 8, 2020, did not require disclosure of the father’s 2007 and 2008 tax returns. In the case at bar, the non-disclosure was not for deceptive purposes, given the disclosed income would have resulted in less child support payable.

[34]        A child who is an adult (age 19 or older in B.C.) may still be eligible for child support, if the child is unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the parent’s charge (see Family Law Act section 146). The onus is on the recipient parent to provide evidence of entitlement to child support for an adult child.

[35]        This often comes up in the context of children pursuing post-secondary education and in those cases the court often refers to what has become known as the “Farden Factors” when addressing such entitlement (see Farden v. Farden, 1993 CanLII 2570 (BC SC), 1993, 48 R.F.L (3d) 60 BCSC, Master Joyce). These factors include:

[36]        Another common approach for proving child support entitlement for an adult child is proving circumstances where the adult child, because of illness or disability, is unable to withdraw from the charge of his/her parents. The disability usually involves something that makes the child significantly unemployable. Often in these types of cases the court also hears about other financial resources provided by the government or other charities to help meet the special needs of the child.

[37]        In the case at bar, the mother advances both approaches. She submits that her son, because of his ADHD, is unable to withdraw from her charge. She further submits that his self-employment is equivalent to someone getting further education in a specific trade such that he is unable to withdraw from her charge until he has another year of running that self-employment business.

[38]        I heard the son testify. He is, with good reason, very proud of his self-employment accomplishments, having grossed nearly $80,000 in 2019 and hoping that the numbers will be even higher in 2020, given 2020 is the first year that he will have a full year of his self-employment. There is no doubt that he is a very hard worker and is capable of having a successful business of installing and maintaining automatic residential sprinkling systems. If he chose to work for someone else, he would be able to be self-supporting financially, but as is the case with most people who try starting up such a self-employment career, for the first year or two, much of the revenue is turned back into the business in order to survive making it profitable in the longer term. 

[39]        Case law does not support the proposition that parents have a positive duty under child support legislation to financially support an adult child’s self-employment business. Many parents voluntarily do support such businesses, but they are usually not ordered by the court to do so. The courts have held in the past that certain trade schooling or other non-post-secondary schooling can temporarily qualify for child support based on the adult child being unable to withdraw from the charge of his parents. However, it would be a leap for the courts to find entitlement to support a self-employment business when the adult child is fit to work in the employment of others. The test is whether the child is “unable” as opposed to “unwilling” to withdraw from the charge of the parents. Choosing self-employment at age 19 is a courageous step for any 19-year-old and it could potentially lead to higher income down the road, but it is a conscious choice as opposed to an inability to withdraw from the charge of his parents. The son hopes to earn six-digit gross revenue in 2020.

[40]        The son is fortunate to have a mother and maternal grandfather who have voluntarily contributed much to help the son with his self-employment endeavours. Many parents make incredible sacrifices for their children and it is often suggested that many children never fully appreciate the depths of those sacrifices, unless those adult children later experience such sacrifices with their own children. That said, in the case at bar, the son expresses much gratitude to his mother and grandfather for their sacrifices on his behalf. Given the 12 years of non-existent contact between the son and father, it is perhaps understandable why the son is less able to express gratitude to his father for the $107,465.00 the father has provided as child support, although when he reads this judgment, I trust he will reflect more on the financial contribution the father has made. Hope springs eternal that their relationship, in future years, can at least return to having some communication.

[41]        Regarding the disability claim to justify adult child support, on the evidence before the court, both the son and the mother testify that the child has outgrown most of his socially inappropriate conduct which occurred in his childhood. There is no medical evidence before the court suggesting the son is unemployable due to disability. By all accounts, the son is physically healthy and thrives on being able to work hard. 

[42]        I find that the child no longer met the definition of “child” in section 146 of the Family Law Act once the child reached the age of majority on [omitted for publication], and as a result, legal child support obligations ended on that date. While his father may choose to voluntarily contribute to his son’s self-employment business, the father has no legal obligation to do so. I understand that the father has not been working since March 2020, given the COVID-19 conditions, and he has been living on the $500 per week assistance provided by the Federal Government.

[43]        Again, without getting into whether the court has jurisdiction to hear a claim regarding a section 7 extraordinary expense in circumstances where the claim was not pursued until after the child was an adult, the court dismisses this claim, given it can be said that with the father’s $21,792 child support overpayment, he unknowingly did contribute to the cost of the orthodontic services. I accept that after insurance, the out-of-pocket total cost for the orthodontic work was $4,175. The braces were obtained March 6, 2018, and they were paid for in full by the mother by the end of 2019.

[44]        The mother claims she spent approximately $40,000.00 in legal fees in this matter. This is not a recoverable section 7 child support expense in our Provincial Court. Much of this expense actually had more to do with trying to restrict the parenting time of the father than with child support issues. It is not for me to say in this hearing whether such parenting time restrictions were justifiable, but I am clear that this is not recoverable as a section 7 expense. 

[45]        It is true that the courts from time to time do make orders in Provincial Family Court requiring one side to pay a penalty amount to the other side. In fact, that is just what the court did in this matter, with the $500 penalty imposed on the father back on August 1, 2007, for his failure to disclose all of the financial records. That said, after paying that penalty, the father did disclose the needed tax returns later that same month and he timely disclosed the documents ordered for disclosure in this final hearing. The court makes no further penalty order today.

[46]        The claim is based upon the mother seeking a $250 penalty for each second weekend court ordered parenting time visit missed from August 2007 until the child turned age 19 in [omitted for publication] of 2018. That would be approximately 286 visits or $71,500. There is a certain irony, given the mother spent a lot of money on legal fees trying to restrict the father’s contact with the child, but now she is claiming the need to penalize the father for ultimately choosing not to exercise that contact. This claim seems more vindictive than realistic when it comes before the court in 2020 as opposed to 2007. It is a continuation of the very warfare between the parents that ultimately resulted in the father walking out of the life of his son. I do not agree with or condone the father’s approach in this regard, but nor do I agree with or condone the mother’s approach with this portion of her claim. Of course it is a tragedy that the relationship between the son and the father ended as it did in 2007. It has not done anyone proud. However, if the child was going to continually be brought up being exposed to, and in the middle of this type of warfare between the parents, that would have also not been healthy. At least to his credit, the father, in spite of no longer seeing the child, continued paying the $646 per month child support until the child turned age 19. 

[47]        This court finds that on [omitted for publication], when the child turned 19, the child was no longer a child under the definition of “child” in section 146 of the Family Law Act, thus the interim child support order of June 7, 2007, terminated at that time.

[48]        This court dismisses the claim for any retroactive child support from the time of the birth of the child on [omitted for publication], until he turned 19 on [omitted for publication].

[49]        This court dismisses the claim for retroactive payment of any section 7 extraordinary expenses.

[50]        This court dismisses the claim for a court imposed penalty for court ordered parenting times which did not happen after September 2007.

[51]        This court also dismisses the claim for compensation for legal fees incurred by the mother regarding the various court proceedings in Provincial Court dealing with this child.

[52]        This court finds there are currently no arrears of child support owing and this court directs that FMEP zero balance their account in this matter. The father consents to this term and he is not seeking any refund for overpayment.