S.K.G. v. T.C.M., 2021 BCPC 120 (CanLII)
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2021 BCPC 120 |
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Date: |
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File No: |
3053 |
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Registry: |
Western Communities |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
S.K.G.
APPLICANT
AND:
T.C.M.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
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Appearing in person: |
Ms. G. |
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Counsel for the Respondent: |
L.K. Weston |
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Place of Hearing: |
Colwood, B.C. |
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Date of Hearing: |
April 12, 2021 |
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Date of Judgment: |
May 7, 2021 |
The Facts
[1] Ms. G. and Mr. M. are the parents of five children, all of whom are now adults. This application is concerned with two of the children, [the elder child], now age 24, and [the younger child], now age 21.
[2] On September 8, 2017, His Honour Judge Cutler of this court made an order in this proceeding (“the Consent Order”) which determined the issues of parenting time, parental responsibilities and child support in relation to [the children].
[3] In September, 2017, each of Ms. G. and Mr. M. was represented by counsel. The terms of the Consent Order were negotiated between counsel and agreed by Ms. G. and Mr. M. The primary purpose of the Consent Order was to determine the child support obligations of the parents arising from the children’s plans for post-secondary education. The Consent Order provided that Mr. M’s obligations in respect of child support and special & extraordinary expenses would cease: (i) in relation to [the elder child] as of April 30, 2019; and (ii) in relation to [the younger child] as of April 30, 2021.
[4] On September 8, 2017, [the elder child] was 20 years of age and [the younger child] was 17 years of age.
[5] Neither [of the children] is a party to this proceeding.
[6] Although the end-dates for Mr. M.’s child support obligations, as established by the Consent Order, have passed, each of [the children] plans to continue his post-secondary education. Each hopes to be financially supported in those endeavours by Mr. M.
[7] Ms. G advises that [the children] knew about the Consent Order, “… but not in detail”. They were shown a copy of the Consent Order, on Ms. G.’s computer screen, shortly after it was pronounced. Each of them knows about and supports the application now before the court
This Application
[8] On January 11, 2021, Ms. G. filed an application to vary the Consent Order to extend Mr. M.’s obligations in respect of child support and special & extraordinary expenses for each of [the children].
Ms. G.’s Right To Bring This Application
[9] “No child support analysis should ever lose sight of the fact that child support is the right of the child …”, not of the recipient parent: D.B.S. vs. S.R.G. 2006 SCC 37 (CanLII), [2006] 2 SCR 231 @ paragraph 60. “Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child's parents …”: Michel vs. Graydon 2020 SCC 24; 40 BCLR (6th) 1; 449 DLR (4th) 147; 45 RFL (8th) 1 @ paragraph 10 (italics in the original).
[10] A guardian of a “child” has authority to commence, conduct and compromise legal proceedings to enforce the “child’s” rights: Family Law Act SBC 2011, c. 25 (“the FLA”), section 41(k).
a. A parent may be obliged to pay child support or educational expenses of a “child” under Part 7 of the FLA. In some circumstances, that obligation may be owed to a “child” who is more than 19 years of age. See section 146 of the FLA. The governing principles were considered in Joffres vs. Joffres 2014 BCSC 1778; [2014] BCJ No. 2372; 52 RFL (7th) 112 @ paragraphs 112 – 113, in DeBeck vs. DeBeck 2012 BCCA 465; [2012] BCJ No. 2414 @ paragraphs 39 – 44 and in L.F. vs. R.B. 2021 BCSC 464; [2021] BCJ No. 519 @ paragraphs 44 - 49.
b. A parent or other guardian may commence, conduct, compromise or settle a proceeding to enforce the rights of a “child”, under the authority of section 41(k) of the FLA. However, a guardian may do so only on behalf of a “child” who is under the age of 19. See section 1 of the FLA.
The legislative scheme makes sense in today’s world. Children frequently need postsecondary education to become productive, self-supporting adults. In the circumstances discussed in Joffres, DeBeck and L.F., it may the duty of one or both parents to contribute to the cost. So, child support obligations may continue after the child reaches age 19. However, we also recognize and respect people over age 19 as autonomous adults, with the right and responsibility to manage their own affairs. So, at age 19, the right to commence, continue or compromise a claim for child support ceases to be vested in the person’s (former) guardians, and can be exercised only by the “child” to whom the right belongs.
[12] It follows that, on the date that the Consent Order was pronounced, Ms. G. had authority to consent to the order on behalf of [the younger child], who was 17, but not on behalf of [the elder child], who was 20.
[13] When the present application was filed, on January 11, 2021, [the elder child] was 23 and [the younger child] was 21. Ms. G. had no right to initiate legal proceedings on their behalf, or to seek to enforce their rights, if any, to child support. Those steps could be taken only by [the children].
Disposition
[14] Ms. G.’s application is dismissed.
[15] Either or both of [the children] may apply to be added as parties to this proceeding, and, if that order is granted, may apply to set aside or vary the Consent Order. Either of them may choose, instead, to make his own application for child support, including special & extraordinary expenses.
[16] A variety of challenging issues will arise if they make such an application. These include:
a. whether the Consent Order affects [the elder child’s] rights in any way, given that he was not a party to this proceeding when the order was made, and Ms. G. had no authority to consent to the order on his behalf;
b. whether, by accepting the benefits conferred by the Consent Order, either or both of [the children] may be taken to have ratified the Consent Order, and so is now bound by its terms: Northpoint Commercial Finance Canada Inc vs. Murray 2018 MBQB 157; [2018] MJ No. 264 @ paragraph 26;
c. whether, given the particular circumstances of the parties, the Consent Order ought to be varied and Mr. M.’s child support obligations extended: S.K. vs. G.R. 2018 BCSC 1758; [2018] BCJ No. 3383;
d. whether Mr. M. should be ordered to pay child support to either of both of [the children], applying the principles set out in Joffries, DeBeck and L.F.
I express no opinion on any of those questions.
[17] I appreciate that these legal concepts are puzzling for the unrepresented litigant. I think it useful to point out to [the children] that free legal advice is available from the Justice Access Centre in the Victoria courthouse: telephone # 250-356-7102.
May 7, 2021
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T. Gouge, PCJ