IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The parties were married on [omitted for publication] 1988 and divorced on [omitted for publication] 2010. They have two children of their relationship:

[2]           The parties entered into a Consent Order dated October 8, 2009 wherein they agreed to an order of joint custody and joint guardianship of the children with their primary residence to be with their mother, S.C.C. (“Ms. C.”). P.S.C. (“Mr. C.”) agreed to pay child support in the amount of $472 per month with any extra expenses to be worked out between the parties.

[3]           Ms. C. filed the Order of October 8, 2009 with the Family Maintenance Enforcement Program (“FMEP”) who enforced the payment of child support over the intervening years.

[4]           Child support was adjusted by the parties in September of 2017, and reduced to $269 per month as W.P.C. was no longer a “child of the marriage” therefore child support was no longer payable. The parties negotiated this change directly with FMEP and did not return to Court.

[5]           D.P.C. is now over 20 years of age. Mr. C. filed an application on December 19, 2019 seeking the termination of child support as of [omitted for publication], the date that D.P.C. turned 19 years of age.

[6]           Mr. C. submits that D.P.C. is capable of working on a full-time basis and living independently. He submits that D.P.C. has a codependent relationship with his mother and she may be unwittingly enabling D.P.C.’s continued dependency. He submits that D.P.C.’s current part-time income along with available government benefits would be sufficient for D.P.C. to meet his monthly needs, and that such independence would benefit his mental health.

[7]           Ms. C. filed a reply on February 5, 2020 seeking to continue the payment of child support for D.P.C. and asking that it be adjusted to be based upon Mr. C.’s current income. Ms. C. submits that D.P.C. remains a “child of the marriage” despite the fact that he is over the age of majority as defined by s. 2 of the Divorce Act, R.S.C. 1985, c. 3, due to ongoing mental health issues and continued educational pursuits.

[8]           Ms. C. submits that D.P.C. has struggled with his mental health for at least five years culminating in a psychotic episode in 2019 which required several hospitalizations.

[9]           She further submits that D.P.C. has continued to take online courses, albeit not on a full-time basis and not regularly, in an effort to achieve his grade 12 diploma. D.P.C. still wishes to pursue his diploma.

[10]        Lastly, she acknowledges that D.P.C. has been able to maintain steady employment since May 2020 and wishes to take some online courses in the fall. However, Ms. C. submits that D.P.C. is limited to working and studying on a part-time basis given his stage of recovery in respect of his psychotic episode and overall mental health. She relied upon various letters from D.P.C.’s family physician and two attending psychiatrists as confirmation that, as of the time the letters were written, D.P.C. was unable to work or attend school on a full-time basis.

[11]        The issues for consideration are whether D.P.C. remains a “child of the marriage” as defined by s. 2 of the Divorce Act and, if so, whether and to what extent Mr. C. remains responsible for the payment of child support.

[12]        D.P.C. appears to have excelled in sports in his teen years with his passion being hockey. He was on the honour roll at the beginning of high school excelling academically. Life changed for D.P.C. in his grade 9 year. He began to struggle with anxiety and depression and was no longer attending school regularly. He agreed to an assessment in his grade 11 year and was diagnosed with ADHD and social anxiety. He was prescribed a stimulant and anti-anxiety medication. The medication caused its own negative effects and he eventually stopped taking them.

[13]        He became socially isolated. He enrolled in distance education and started classes but did not finish them. D.P.C. began drinking large amounts of coffee, and then started using cannabis, saying it helped him concentrate.

[14]        D.P.C. was able to work in construction in 2018 for three days and subsequently as a dishwasher at a restaurant for three weeks. In the fall of 2018, D.P.C. became withdrawn and he spent most of his time in his room. By the summer of 2019, he was able to work on a family farm in Saskatchewan for two and a half months, earning over $5,600 that year.

[15]        In the fall of 2019, D.P.C.’s behaviour escalated. He began to break things including smashing a laptop, iPad and furniture. He began hearing voices. He had difficulty eating, and when he did eat, he had severe abdominal pain. He was using cannabis to ease his anxiety. The voices eventually taunted him to kill himself. Ms. C., worried for his safety, called the police on September 30, 2020 and D.P.C. was hospitalized under the Mental Health Act, R.S.B.C. 1996, c. 288.

[16]        D.P.C. returned to his mother’s care and his behaviour and health continued to deteriorate. Ms. C. had to seek help again for her son and D.P.C. was hospitalized from October 26 to December 5, 2019. The hospital Discharge Planning Initiative describes his admitting diagnosis as: (i) unspecified psychotic disorder; and (ii) cannabis use disorder. The discharge diagnosis was: (i) schizoaffective disorder, bipolar type i.e. schizophrenia; (ii) cannabis use disorder; and (iii) past diagnosis i.e. ADHD, social anxiety.

[17]        After D.P.C.’s discharge he slept for long periods of time, avoided people and stimulants such as the internet, and largely remained at home. He slowly began to recover and in February 2020 began working three hours per day, three days a week, canvassing for a painting company. This job came to an end in mid March 2020, for reasons outside of his control, however the company subsequently hired him as a painter in May 2020. He has continued to work in this capacity to the current date and works an average of 18 hours per week earning approximately $1,500 per month.

[18]        By all accounts both parents have been involved and dedicated parents. The parents shared parenting of the children until Mr. C. moved to Chemainus in 2016 when W.P.C. was 20 and D.P.C. was 16. Since that time, Ms. C. has born a greater share of parenting D.P.C., who has continued to live at home with her, however Mr. C. remains in regular contact with D.P.C. and they have a family camping trip planned this summer.

[19]        Mr. C. has maintained employment in sales and indicated that early in the relationship he paused his career to stay home with the children for two years to support Ms. C. in furthering her career as a nurse. He states that he was unable to further his studies due to a lack of family funds and that his income compared to Ms. C.’s has consistently been lower, citing their 2019 taxable incomes as $38,739 for him and $90,158 for her.

[20]        Ms. C. was able to keep the family residence after the parties separated and stated this was important to her in order to be able to provide the children with a stable home base. Ms. C. created an additional income stream from the home by renting out a suite and two rooms in the lower level of her home.

[21]        Ms. C. indicated that working as a nurse and a front line worker during the COVID-19 pandemic, dealing with rental issues and supporting D.P.C. with his mental health issues have taken a significant emotional and physical toll on her.

[22]        She stated that two tenants left – one in November 2019 and the other in January 2020 – and the third rental, being a one room suite, would not be rented out as of September 1, 2020. Ms. C. stated that she did not intend to rent out any portion of her home any longer as she was “taking a break”. This will result in a loss of gross income of approximately $1,800 per month or $21,600 per year. I questioned the wisdom of this decision in light of the significant income that would be lost, moreover, I considered the actual economic significance of the child support payable by Mr. C. (in the amount of $269 per month) to the household budget given Ms. C.’s willingness to forego $1,800 per month in rental income.

[23]        Based upon the financial disclosure filed by the parties, their respective incomes for the 2019 calendar year are as follows: Mr. C. had a Line 150 income of $38,739 in 2019. Ms. C. had a Line 150 income of $90,158. D.P.C. had total employment income of $5,635 as evidenced by a T4 slip produced by Ms. C. in her Financial Statement.

[24]        Mr. C. submitted that his family property totaled assets of $3,500 and debt of $22,080 for a net family property of (-$18,580) whereas Ms. C.’s net family property totalled approximately $850,000 as detailed in her Financial Statement. This largely resulted from the equity that she has accumulated in the former family residence.

[25]        Mr. C. points to the discrepancy in their incomes and family property as a consideration in determining whether the full amount of Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) support should remain payable if child support continues to be payable.

[26]        D.P.C. has had employment income of approximately $1,500 per month through his employment as a painter since May 12, 2020. He has been encouraged by both Mr. C. and his attending psychiatrist to apply for disability government benefits. Ms. C. stated that she believes he has thus far been unwilling to apply as he does not view himself as disabled and there may be a significant amount of emotional distress to D.P.C. in that acknowledgment.

[27]        Mr. C. submitted text messages as between him and his son wherein D.P.C. asked for help in applying for government benefits and Mr. C. readily agreed. Mr. C. states that D.P.C. did not follow through as he indicated his mother did not want him to apply.

[28]        The current amount of provincial disability benefits available to Persons with a Disability (“PWD benefits”) are $1,183.42 per month. There are several other benefits available such as a bus pass and select medical and dental benefits. The program also provides an exemption for earnings up to $12,000 per year.

[29]        One objective of PWD benefits is for society to assist people who face significant barriers to gain greater independence.

[30]        Ms. C. stated that D.P.C. has earnings of approximately $1,500 per month. He is saving up to buy a car and puts money aside for school. His monthly expenses include buying his own clothing and contributing approximately $100 per month towards groceries and $40 per month in gas. His monthly expenses are therefore quite modest and most of his employment income goes to savings.

[31]        Ms. C. provided a budget for D.P.C. should he live independently. It totalled $2,475 per month including a proposed rental expense of $1,200 per month, however Ms. C. clearly indicated that she did not believe D.P.C. should live independently therefore the theoretical budget was of limited value.

[32]        Ms. C.’s Financial Statement details her monthly mortgage, property taxes, insurance and utilities as $2,246. Food and household supplies total $1,198 for a basic monthly budget of $3,444. If I consider half of this budget as being for the benefit of D.P.C.’s basic expenses then his share totals $1,722 per month.

[33]        Section 2(1) of the Divorce Act defines a “child of the marriage” as:

[34]        I have determined that D.P.C. remains a child of the marriage as a result of his mental health challenges and continued efforts to complete his grade 12 diploma.

[35]        In determining the amount payable under the Guidelines for a child over the age of majority, the court must consider whether child support should be determined pursuant to s. 3(2)(a) or (b) of the Guidelines. The applicable provision is as follows:

[36]        The proper approach to this issue was summarized as follows by Justice Voith in Kollmuss v. Kollmuss, 2015 BCSC 1101:

[37]        The usual Guidelines amount under s. 3(2)(a) would be $365 per month based upon Mr. C.’s 2019 income. The current amount that Mr. C. pays pursuant to the Court Order of October 8, 2009 is $269 per month. However, I have determined that Mr. C. has met his onus of establishing that the proper approach on these facts is to apply s. 3(2)(b) for the following reasons:

[38]        There are a number of cases that have determined that the receipt of PWD benefits renders the underage approach to the determination of child support inappropriate particularly where the incomes of the parties are modest. Kolmuss v. Kolmuss, 2015 BCSC 1101, C.L.C. v. B.T.C., 2012 BCSC 736, Willms v. Willms, [2019] B.C.J. No. 2161.

[39]        What distinguishes this case however is that D.P.C. is not currently in receipt of PWD benefits. It is clear that he could certainly make an application for PWD benefits and has, in fact, been encouraged to do so both by Mr. C. and his attending psychiatrist. Mr. C. stated that he would gladly assist his son in making such application as he sees it as a positive step toward D.P.C.’s independence. I have therefore considered the ability to apply for PWD benefits as analogous to the receipt of PWD benefits in the circumstances of this case. The fact that he is currently not in receipt of PWD benefits and has not applied should not preclude an analysis under s. 3(2)(b).

[40]        In terms of a methodology to determine the appropriate amount of support where the Guidelines amount is inappropriate, the Court in C.L.C. calculated the adult child’s basic monthly expenses, deducted the disability benefits from this total, and ordered the parties to divide the remainder in proportion to their incomes. This approach was followed in Willms v. Willms, [2019] B.C.J. No. 2161.

[41]        In this case, the proposed budget of $2,475 per month is of limited assistance as D.P.C. does not live on his own and has no plans to do so. When he does choose to move from Ms. C.’s home, he may be able to live in some form of assisted or supportive housing, if he makes an application for government assistance. His current actual expenses are modest as he contributes approximately $140 per month to Ms. C.’s household and the remainder of his earnings go towards his savings.

[42]        Based upon Ms. C.’s Financial Statement, D.P.C.’s share of her basic monthly budget including the mortgage, property taxes, insurance, utilities, food and household supplies totals $1,722 per month. This is easily covered by D.P.C.’s earnings of $1,500 per month and PWD benefits of $1,183.

[43]        Ms. C.’s proposed future budget for D.P.C. included a further $1,200 to $2,400 per year for psychotherapy being 10 to 20 sessions. Mr. C. suggests far less expensive community counselling. Ms. C.’s Financial Statement included Blue Cross statements which show D.P.C.’s counselling costs being covered by her extended benefits plan. Should D.P.C. receive PWD benefits, some of these expenses may well be covered. I therefore do not consider these to be current special and extraordinary expenses.

[44]        As a result, I find that child support is no longer payable for D.P.C. I order that Mr. C.’s obligation to pay child support terminates as of October 1, 2020 to allow for some transitional child support while Mr. C. assists D.P.C. in applying for PWD benefits. If, for any reason, D.P.C.’s application for disability benefits is not approved, and he is found ineligible after submitting his application, then either party may be at liberty to seek a review of child support.