COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Semancik v. Saunders,

 

2011 BCCA 264

Date: 20110609

Docket: CA038394

Between:

Karen Leah Semancik

Respondent

(Plaintiff)

And

Timothy Edward Saunders

Appellant

(Defendant)

Before:

The Honourable Madam Justice Rowles

The Honourable Madam Justice Levine

The Honourable Madam Justice Garson

On appeal from the Supreme Court of British Columbia July 29, 2010

(Semancik v. Saunders, 2010 BCSC 1278, New Westminster Registry,

Docket Number S00758)

Counsel for the Appellant:

R.E. Peters

Counsel for the Respondent:

T.R. Bell

Place and Date of Hearing:

Vancouver, British Columbia

March 31, 2011

Place and Date of Judgment:

Vancouver, British Columbia

June 9, 2011

 

Written Reasons by:

The Honourable Madam Justice Levine

Concurred in by:

The Honourable Madam Justice Rowles

The Honourable Madam Justice Garson


 

Reasons for Judgment of the Honourable Madam Justice Levine:

Introduction

[1]             The issues on this appeal concern a father’s child support obligations to his adult child.

[2]             The appellant father appeals from the order of a Supreme Court chambers judge who dismissed his application for a reduction or cancellation of child support arrears fixed at $13,171, and ordered him to pay the mother $6,801.86 for retroactive special expenses pursuant to s. 7 of the Federal Child Support Guidelines, SOR/97-175.

[3]             The father appealed on three grounds: the chambers judge erred in rejecting his application to reduce or cancel arrears, in finding he was responsible for the retroactive s. 7 expenses, and in fixing the contribution of the child to her own post-secondary education expenses.  He also raised a new issue in his factum:  whether the court had jurisdiction to order payment of retroactive s. 7 expenses after the child was no longer a “child of the marriage”.

[4]             For the following reasons, I would dismiss the appeal.

Factual Background and Procedural History

[5]             The parties commenced a common law relationship sometime between 1984 and 1986.  They have two children, a son, born January 13, 1988, and a daughter, born May 19, 1990.  The parties ended their relationship in 1992.

[6]             The children have resided with the respondent mother since the separation.  A family law action was commenced in 1992 to settle the custody and support issues.

[7]             The father commenced a new relationship and joined a medical supply business with his new partner.  He remains a 50 percent shareholder in the company.

[8]             On September 10, 1998, Mr. Justice Josephson ordered that the father pay child support and his proportionate share of special expenses for daycare and orthodontic expenses.  The order required the mother to “produce to the [father] on the 15th day of each month, receipts for payments made by her in respect of either daycare or orthodontic treatment for the preceding month” and the father to pay his proportionate share of those expenses “on or before the 15th day of the next month following ...”.

[9]             In March 2007, the mother applied for a retroactive increase in child support and a determination of the parties’ proportionate share of extraordinary expenses.  The mother’s application was heard by Mr. Justice Maczko who determined the father’s income for the purposes of the Guidelines for 2007 to be $122,500, and (having determined the son was no longer a child of the marriage) ordered the father to pay the mother child support for the daughter of $1,087 per month.  He dismissed the mother’s application for an order that the father pay his proportionate share of extraordinary expenses. 

[10]         Since 2007, the father’s company lost all of its significant contracts and ceased sales.  The father stopped paying child support as of January 1, 2009.  Between January and April 2009, he made payments of $2,700 directly to the daughter and in September 2009, he paid $1,000 to the mother.  In 2008, the father paid the mother $2,000, which he noted on the cheque was for “special expenses”. In 2009, he paid $961.60 to or on behalf of the daughter for school expenses, and created a tax-free savings account for the daughter which contained $5,000 in dividend paying stocks. 

Reasons of the Chambers Judge

[11]         The father applied for an order “vacating all arrears of child support”.  The chambers judge determined the arrears were $13,171 (at para. 5).

[12]         The mother applied for an order that the father pay retroactive and ongoing s. 7 expenses for the daughter for vision and dental care and post-secondary education.  The chambers judge determined the total out-of-pocket expenses claimed for 2008 and 2009 were $10,230.14 (at para. 11).

The Father’s Income

[13]         For the purposes of deciding both applications, the chambers judge determined the father’s income for 2008 and 2009.

[14]         The father’s stated income for 2008 was $56,000 and for 2009 was estimated to be $22,000 (at para. 15).  The chambers judge found that the medical supply company had retained earnings in excess of $800,000 and that this amount increased by about $166,000 in 2008 and approximately $120,000 in 2009 (at para. 17).  The chambers judge found that as a 50 percent shareholder, the father would be entitled to one-half of those profits, providing the father an additional $80,883 of income for the purposes of child support in 2008 and $42,500 in 2009 (at para. 18).  Adding these amounts to his stated income for these years, the chambers judge determined that the father’s income was $137,169 in 2008 and $68,541 in 2009 (at para. 19).  The chambers judge noted that the father had other assets, including a one-half interest in a home, two vehicles, a boat, insurance policies, savings accounts, and RRSPs, having a total value of $827,000 (at para. 20).

Section 7 Expenses

[15]         The chambers judge determined that the 2008 and 2009 expenses claimed for the daughter’s dental treatment, eye glasses and post-secondary education were proper expenses under s. 7 of the Guidelines for which the father was required to pay his proportionate share.

[16]         The father argued that the daughter was capable of making a contribution to those expenses, particularly her post-secondary education costs, which the mother said were $5,792.27 for tuition and books.  The daughter had paid $881 for books.  The mother paid the tuition costs of $4,049.85.  The father’s evidence was that the daughter owned her own car (purchased for approximately $12,000), had $4,000 in savings, and went on two Caribbean vacations during the relevant period.  The chambers judge determined that it would have been reasonable for the daughter to pay $1,000 more for her educational expenses.

[17]         The father argued that he did not have effective notice of the expenses.  He deposed that he had not received the receipts for the expenses until they appeared appended to the affidavits filed in support of the mother’s application, nor was he consulted about the various expenses that made up her claim for a retroactive order (at para. 34).  The chambers judge accepted the mother’s evidence that she had discussed the dental expenses with the father, and then gave up “pursuing him ... because of her frustration at his lack of cooperation and disclosure” (at para. 35).  The chambers judge concluded that the father knew that dental and education expenses were being incurred, and he had notice of the mother’s request “more or less contemporaneously with her having personally taken on each expense” (at para. 41).  The chambers judge referred to the father’s September 2008 cheque for $2,000, which the father described in his affidavit as “for the children’s education”, and the creation of the tax-free savings account for the daughter’s education expenses, as evidence of the father’s knowledge that the mother was paying most of the expenses.

[18]         The chambers judge determined that s. 7 expenses in the amount of $9,230.14 (reduced from the original amount claimed by $1,000 ordered to be contributed by the daughter) should be divided in proportion to the parties’ incomes for the years 2008 and 2009.  In the result, the father was ordered to pay $6,018.86 for the s. 7 expenses.

Application to Reduce or Vary Child Support Arrears

[19]         The chambers judge considered the appellant’s application to reduce or cancel the child support arrears (at para. 48).  Citing Earle v. Earle, 1999 BCSC 283, he concluded he was not satisfied that it would be “grossly unfair” to refuse to reduce the arrears, or that the father “cannot pay now and will never be able to pay these arrears in future”.  He dismissed the application to reduce or cancel the child support arrears.

Analysis

Fresh Evidence

[20]         Both parties applied to introduce new evidence on the appeal.  Their affidavits describe the daughter’s work and education activities, and contributions made by each of them to her expenses since the order appealed from.  Except for the evidence relevant to the father’s argument, raised on appeal for the first time, that the daughter was not a “child of the marriage” when the mother’s application for retroactive s. 7 expenses was made and the court did not have jurisdiction to make a retroactive order, I would not admit the new evidence as it would not have changed the chambers judge’s assessment of the facts (for a discussion of the tests for the admissibility of fresh or new evidence, see Jens v. Jens, 2008 BCCA 392).

[21]         The mother’s affidavit included information concerning the timing of the service of her application for retroactive s. 7 expenses, and information about the daughter’s nursing education program that commenced January 1, 2011.  This information is relevant to the father’s jurisdiction argument and I would admit it only for the purpose of describing that issue in these reasons for judgment.

[22]         At the hearing of the appeal, counsel were requested to provide the materials that were before Maczko J. and his reasons for judgment in respect of his 2007 order.  I thank counsel for providing these materials.  I have not found them relevant and have not had reference to them in deciding the outcome of the appeal.

[23]         Mr. Justice Josephson’s order of September 10, 1998 was attached as an exhibit to the father’s affidavit filed as fresh evidence.  It was not otherwise in the record, and apparently was not before the chambers judge.  This order is not fresh evidence – it is part of the record of the parties’ dealings.

Variation or Cancellation of Child Support Arrears

[24]         Section 96(2) of the Family Relations Act, R.S.B.C. 1996, c. 128 (“FRA”), governs the court’s response to an application to reduce or cancel arrears of child support:

If an application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears but only if it is satisfied that it would be grossly unfair not to do so. 

[25]         In Earle, Madam Justice Martinson reviewed the principles that apply in determining whether arrears of child support should be reduced or cancelled, concluding that there are two requirements for a successful application to reduce or cancel arrears.  The applicant must prove a material (which Martinson J. defined as a “significant and long lasting”) change in circumstances and that it would be grossly unfair not to cancel the arrears.  Generally, arrears will only be cancelled if the applicant shows he is unable to pay “now and in the future”.

[26]         The father argues on the appeal that it is unfair to treat his declining income differently for the purposes of child support arrears and special expenses. 

[27]         The chambers judge determined the father’s income for 2008 for the purposes of determining his proportionate share of s. 7 expenses to be $137,169.  This is higher than the 2007 income of $122,500 used by Maczko J. to calculate the child support payments.  The father’s 2009 income as determined by the chambers judge was $68,541.  Thus, during this two-year period he was projected to earn $244,000 but instead earned $205,710.

[28]         The chambers judge made no finding concerning whether the reduction in the father’s income for the two-year period was a material change in circumstances.  He dismissed the application to reduce or cancel arrears on the basis that the father did not meet the second requirement in Earle that he satisfy the court that it would be grossly unfair not to cancel the arrears.

[29]         The father did not show that he was unable to pay the arrears then or in the future.  The total arrears are $13,171.  The appellant’s total income for the two years in question was over $200,000, and he has personal assets worth over $800,000, not including 50 percent of a company with over $800,000 in retained earnings.

[30]         The father’s complaint of “unfairness” in the different treatment of applications to cancel arrears as compared with applications to vary child support retroactively may arise from a misunderstanding of the legal tests applicable to the two kinds of orders.

[31]         The statutory requirements for these applications are found in ss. 96(1.1) and (2) of the FRA.  Section 96(1.1) governs an application to vary a child support order:

(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must

(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and

(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.

[32]         In contrast, s. 96(2) of the FRA permits the court to reduce or cancel arrears “only if it is satisfied that it would be grossly unfair not to do so”.

[33]         In order to succeed on his application to reduce or cancel arrears, the father had to meet the higher threshold of s. 96(2), as outlined in Earle.  As noted by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 98, arrears and retroactive child support orders are based on different considerations:

Before canvassing the myriad of factors that a court should consider before ordering a retroactive child support award, I also want to mention that these factors are not meant to apply to circumstances where arrears have accumulated. In such situations, the payor parent cannot argue that the amounts claimed disrupt his/her interest in certainty and predictability; to the contrary, in the case of arrears, certainty and predictability militate in the opposite direction. There is no analogy that can be made to the present cases.

[34]         The chambers judge made no error in dismissing the father’s application to reduce or cancel arrears.  I would not accede to this ground of appeal.

Retroactive Section 7 Expenses

[35]         The appellant’s second ground of appeal is that the chambers judge erred in determining that proper notice was given of the special expenses and that a retroactive order was warranted.

[36]         In D.B.S., the Supreme Court of Canada confirmed, in the context of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (and the Alberta Parentage and Maintenance Act, R.S.A. 2000, c. P-1), that a court may make retroactive orders for child support, and set out the principles applicable to making such orders.  The Court was careful to point out that, for constitutional reasons, not all provincial statutory regimes governing child support matters must reflect the approach found in the Divorce Act and the Guidelines.

[37]         This case is governed not by the Divorce Act, but by the FRA (to which the Guidelines are applicable by virtue of the Child Support Guidelines Regulation, B.C. Reg. 61/98).  The FRA expressly provides, in s. 93(5)(d), that a child support order may be made retroactively.  The principles articulated in D.B.S. for determining whether a retroactive award is appropriate have been applied by this court to retroactive orders made under the FRA:  see, for example, Reis v. Bucholtz, 2010 BCCA 115 at paras. 66-80.

[38]         The principles set out in D.B.S. applicable to making retroactive child support orders also apply to making retroactive orders for s. 7 expenses: see Selig v. Smith, 2008 NSCA 54, 266 N.S.R. (2d) 102 at para. 25-26; Hetherington v. Tapping, 2007 BCSC 209 at para. 20; R(J.C.) v. R.(J.J.), 2006 BCSC 1422 at para. 25.  Thus, the chambers judge’s decision to order the father to pay retroactive s. 7 expenses must be analyzed in the context of the principles set out in D.B.S. for determining whether a retroactive child support order is appropriate.

[39]         In D.B.S., the Court’s analysis of the justification for and principles applicable to retroactive child support awards proceeded from the “core principles [that] animate the support obligations that parents have towards their children” (at para. 38):

They include:  child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent.

[40]         Parents have an obligation to support their children in a way that is commensurate with their income.  This parental obligation, like the child’s corresponding right to support, exists independent of any statute or court order (at para. 54).  It is the responsibility of both parents to ensure that the payor parent fulfils his or her actual obligation.  Where they fail in this obligation, a court may order an award that recognizes and corrects this failure.  Such an award is in no way arbitrary for the payor parent.  To the contrary, it serves to enforce an obligation that should have been fulfilled already (at para. 68).

[41]         A retroactive award is not always appropriate.  Such an award may provide the child with no discernible benefit, or may cause hardship to the payor parent (at para. 95).   A retroactive award can impair the balance between certainty and flexibility in this area of the law (at para. 96), but such an award is not to be regarded as exceptional.  “It cannot only be exceptional that children are returned the support they were rightly due” (at para. 97).

[42]         In D.B.S., Bastarache J. for the majority of the Supreme Court set out four factors to be considered in determining whether a retroactive award is appropriate:  whether the recipient parent has a reasonable excuse for why support was not sought earlier; blameworthy conduct of the payor parent; the circumstances of the child; and whether any hardship would be caused by a retroactive award (at paras. 100-116).

[43]         Once a court determines that a retroactive child support award should be ordered, it must decide the amount of that award.  One of the elements of that decision is the date to which the award should be retroactive (at para. 117).  That date is the date when “effective notice” was given to the payor parent that child support or s. 7 expenses need to be paid.  Effective notice does not require the recipient parent to take any legal action; “all that is required is that the topic be broached” (at para. 121).

[44]         The father claims that the chambers judge erred in not expressly considering the mother’s entitlement to a retroactive award by discussing the four factors set out in D.B.S. This court has previously held, however, that it is not necessary for a judge to do so (see E.R.H. v. B.W.H., 2009 BCCA 573), though in Reis the Court suggested that a chambers judge is expected, in making a retroactive award, to discuss his or her reasons for doing so (at para. 67).

[45]         The chambers judge did not expressly discuss the four factors, but he discussed the evidence relevant to these factors in considering whether the mother had given the father effective notice of the s. 7 expenses.

[46]         The chambers judge found the mother’s evidence that she gave up pursuing the father to pay the expenses “because of her frustration at his lack of cooperation and disclosure ... to be believable ... in the overall context of the relationship between the parties that is revealed in the material” (at paras. 35 and 37).  In so concluding, he implicitly accepted that she had a reasonable excuse for delay in applying for a retroactive contribution to s. 7 expenses.

[47]         In D.B.S., Bastarache J. suggested that a reasonable excuse for delay would include a justifiable fear that a payor parent would react vindictively to an application for child support, or the recipient parent lacked the financial or emotional means to bring an application (at para. 101).

[48]         While the mother’s evidence of her “frustration” at the father’s “lack of cooperation and disclosure” does not expressly reveal fear on her part or vindictiveness on his, I would not interfere with the chambers judge’s conclusion, based on his consideration of “the context of the relationship between the parties that is revealed in the material”, that the delay was not unreasonable.

[49]         The chambers judge also discussed aspects of the father’s conduct relating to the expenses.  In considering whether the father had effective notice of the dental expenses, he accepted the mother’s evidence that the father’s payment of $2,000 in September 2008, which the father deposed was “for the children’s education”, was actually directed towards the dental expenses (at para. 37).  Thus, the father was taken to know about the dental expenses at the time they were incurred (mostly in August 2008).  The chambers judge also noted that the father established a tax-free education account for the daughter, which, together with the payment of various other school expenses, revealed that the father knew the daughter was attending post-secondary school.

[50]         In D.B.S., Bastarache J. described “blameworthy conduct” as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support” (at para. 106).  He commented that “a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (at para. 107).

[51]         The father made some efforts to provide support for his daughter’s education by making direct payments to her and establishing the education account, and the chambers judge found he contributed $2,000 to her dental expenses.  The chambers judge described his “generosity towards his children” as “laudable”, but noted that the direct payments of child support circumvented a valid support order which “cannot be condoned” (at para. 47).

[52]         On his own admission, the father made unilateral decisions about the amounts and timing of his contributions without real consideration of his legal and moral obligations to share in his daughter’s support.  He disputed the necessity for the dental work to correct his daughter’s congenital defect, and insisted that she should be responsible for her school expenses knowing that the mother was in fact paying them.  While he made much of the reduction in his income after 2007, the chambers judge’s analysis demonstrates that he continued to have the capacity to provide the additional amount of support claimed for s. 7 expenses.

[53]         The chambers judge made no finding, in the context of the consideration of the mother’s application for retroactive s. 7 expenses, that the father’s conduct was “blameworthy”.  His comments about the father’s “circumvention” of the child support order, however, would fall within the concept of “blameworthy” described in D.B.S., and would support a retroactive order.

[54]         The chambers judge discussed the daughter’s circumstances, in the context of determining that she should contribute $1,000 more to her education expenses.  In determining the father’s income for 2008 and 2009, he discussed the evidence that would be relevant in considering whether any hardship would be caused by a retroactive award.  This evidence is relevant to the last two D.B.S. factors – the circumstances of the child and hardship – which are not, in my opinion, of significance in this analysis.  The daughter’s expenses have been paid, and there is no evidence she had to forego any education program for financial reasons.  Balanced against that is the chambers judge’s analysis of the father’s income and assets that demonstrates that a retroactive contribution of $6,801.86 for s. 7 expenses will not cause him hardship.

[55]         The father’s primary objection to the retroactive award is that the mother did not provide receipts for expenses as they were incurred by her, and that the first notice of the specific nature, amounts and timing of the expenses was in affidavits filed on this application.  He says that without that information, there was no way for him to know what the expenses were, and how much he was required to contribute.  The father says that the mother’s application is like that considered by BC Supreme Court judges in Petersen v. Petersen, 2007 BCSC 497 and Leachman v. Leachman, 2008 BCSC 1166.  In both of those cases, the applicant for an order for contribution to retroactive s. 7 expenses first informed the other parent of the nature, amount and timing of the expenses in her affidavit filed on the application.  The application was dismissed on the ground that the applicant did not have a reasonable excuse for delay in requesting the contributions.  The chambers judge in Leachman, quoting Petersen, said (at para. 29):

In my view, the plaintiff does not have a reasonable excuse for her delay in requesting the defendant’s contributions.  The plaintiff did not have to know the defendant’s exact income to know that he should be contributing to special and extraordinary expenses.  Although the defendant can ascertain how much child support he owes based on his income, he is unable to determine his contribution towards special and extraordinary expenses unless the plaintiff informs him of the amount expended.  As Metzger J. states in Petersen, supra, at para. 30:

The defendant was and is entitled to know why a special and extraordinary expense is being incurred.  In the interests of fairness and certainty, it is essential that the recipient parent inform the payor parent in a timely manner of the details of the expenses as they occur.  It is unfair and unreasonable to expect a payor parent to pay a lump sum for past special and extraordinary expenses when the other parent does not inform him of the nature and extent of those expenses.

[56]         From reading the reasons for judgment in those cases, it appears that the mother had not discussed any of the expenses with the father, in even a general way, before bringing the application for a retroactive award. The evidence in this case, however, supports the chambers judge’s finding that the father knew the nature and at least the approximate amount of the dental and education expenses that were being incurred by the mother for the daughter in 2008 and 2009, and that she wished him to contribute.

[57]         Having said that, and accepting that the principles applicable to retroactive awards of child support and s. 7 expenses are the same, in my opinion the factual difference between these two types of parental contribution to child support is worth mentioning.   In the case of child support, the payor parent’s income is determinative.  That parent knows what his or her income is and can determine the amount of the child support obligation from the Guidelines.  In the case of s. 7 expenses, it is the recipient parent who knows the details of the expenses.  If that parent does not communicate that information to the payor parent, the payor parent cannot fulfill his or her legal obligation to contribute.  That is the point, with which I agree, of the decisions in Petersen and Leachman.

[58]         In this case, both parties have difficulty communicating with each other regarding these matters.  It seems to me that much of the financial and emotional expense involved in this application and appeal might have been avoided had the mother taken the additional step of providing the receipts for the expenses to the father as they were incurred, as Josephson J. required in the order he made in 1998.  The mother could mail the receipts to the father, which would obviate any direct communication.  The father would then be in a position to determine his obligation to contribute.

[59]         In the result, I am satisfied that the chambers judge’s order requiring the father to pay retroactive s. 7 expenses for 2008 and 2009 is appropriate in this case.

“Child of the Marriage”

[60]         The father raised a further argument in his factum that no retroactive order should have been made because the daughter was not a “child of the marriage” when the mother’s application was brought.  This argument was not made before the chambers judge, and was not set out in the father’s notice of appeal.  The mother argues it should not be considered by this Court.

[61]         In D.B.S., Bastarache J. found (at paras. 88-89) that “a retroactive child support order will only be available so long as the child in question is a ‘child of the marriage’ when the application was made”.  He concluded that the meaning of “at the material time” in the definition of “child of the marriage” in s. 2(1) of the Divorce Act  is the time of the application, and that a court does not have jurisdiction under that Act to make a child support order for an adult.

[62]         Justice Bastarache also considered the provisions of the Alberta legislation, and concluded that a court will not have the jurisdiction to order support if the child in question was over 18 at the time the application was made, or if certain expenses occurred more than two years in the past (at para. 87).

[63]         This application was brought under the FRA.  The applicable definition of “child” in s. 87 is different from both the Divorce Act and the Alberta legislation.  It does not include the words “at the material time”, which appear in the Divorce Act and which Bastarache J. pointed to in his analysis.  Section 87 defines “child” for the purposes of Part 7 of the FRA, which deals with “Maintenance and Support Obligations”, as follows:

“child” includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

[64]         This difference in the statutory language raises the question of whether the conclusion of the Supreme Court in D.B.S. on this issue in relation to the Divorce Act applies to applications for retroactive support brought under the FRA.  Neither counsel addressed this question at the hearing of the appeal.  We were referred to no authority, and I have found none in my research, that has considered this question.

[65]         The facts of this case are also not straight-forward.  The daughter turned 19 on May 19, 2009.  She continued to be a “child” until January 2010 on the basis that she was in full-time attendance in post-secondary education and was therefore unable to withdraw from her mother’s charge.  The mother conceded that the daughter was no longer a “child of the marriage” as of January 1, 2010, and therefore she did not have that status on the date the mother’s application for retroactive s. 7 expenses was served and filed, February 11, 2010.

[66]         In the father’s notice of motion dated January 26, 2010 and filed February 10, 2010, he sought orders vacating his arrears of child support and permitting him to make payments directly to his daughter.  On February 12, 2010, Truscott J. made an order adjourning the father’s application to March 16, 2010, and varying Maczko J’s. 2007 order by terminating the father’s obligations for child support for the daughter as at January 1, 2010, without prejudice to the father’s arguing that the date the daughter ceased to be a child of the marriage “as defined by the Divorce Act (Canada 1985)” was a date earlier than January 1, 2010.

[67]         The mother deposed, in her affidavit filed as fresh evidence, that the daughter resumed full-time schooling in January 2011.  All of the expenses claimed were for 2008 and 2009, when the daughter was still a “child of the marriage”.

[68]         To further confuse the matter, in one of the cases heard and decided at the same time as D.B.S., Henry v. Henry, the Supreme Court of Canada confirmed the trial judge’s order for retroactive child support despite the fact that the child was no longer a child of the marriage when the Notice of Motion for child support was filed (at para. 150).  The Divorce Act applied to that case. The Court held that the “formal legal procedure” of serving a Notice to Disclose/Notice of Motion was sufficient to trigger the jurisdiction of the court.  As it had been completed before the time the child ceased to be a child of the marriage, the court was able to make a retroactive order for that child.

[69]         In this case, the mother’s application for retroactive s. 7 expenses was served on the father before Truscott J. made the order that the daughter was not a child of the marriage as of January 1, 2010.  By analogy with the Supreme Court’s decision in Henry v. Henry, it is arguable that the court’s jurisdiction to make a retroactive order was triggered by service of the mother’s application before the order was made concerning the daughter’s status, but it is not clear what the effect of Truscott J.’s order being made retroactive to January 1, 2010 would have.

[70]         I have outlined the legal and factual issues raised by the father’s argument to demonstrate the complexity of the issue.  The chambers judge did not have the opportunity to hear and consider these issues and provide reasons for judgment for this Court to review, and I do not consider it appropriate for this Court to decide this important jurisdictional issue for the first time.

Retroactive Section 7 Expenses – Conclusion

[71]         I would not accede to this ground of the father’s appeal.

Daughter’s Contribution to Special Expenses

[72]         The father’s third ground of appeal is that the trial judge erred by not requiring the daughter to pay more than an additional $1,000 towards her education costs.

[73]         In Wesemann v. Wesemann, (1999), 49 (R.F.L.) (4th) 435 (BCSC), [1999] B.C.J. No. 1387, Martinson J. reviewed the principles relevant to determining how much a child should contribute to his or her own education expenses.  She said (at para. 22):

Post secondary education is a privilege, not a right: Whitley [[1997] B.C.J. No. 3116 (SC)] (at para. 21). Children have an obligation to make a reasonable contribution to their education. However, just because a child is earning income, it does not follow that all of that income must be applied to the child's education. The desirability of allowing the child to experience some personal benefit from the fruits of his or her labours should also be considered: Glen v. Glen [(1997), 34 R.F.L. (4th) 13 (B.C.S.C.)] (at para. 14). [Emphasis added.]

[74]         The question of how much an adult child should contribute to her education costs was recently considered by the Saskatchewan Court of Appeal in Fleming v. Boyachek, 2011 SKCA 11.  The Court noted that a chambers judge has “very broad discretion” to determine the respective contributions of the parents and a child to contribute to the post-secondary education costs of an adult child.  That Court’s discussion of the principles applicable to the review of a judge’s decision on that question is equally applicable here.  The Court said (at paras. 5, 7 and 8):

[The chambers judge] cited the leading cases relating to the respective obligations of parents and adult children to pay for post-secondary education expenses, including Fernquist v. Garland, 2005 SKQB 519, 22 R.F.L. (6th) 371; Rebenchuk v. Rebenchuk, 2007 MBCA 22, 279 D.L.R. (4th) 448 and Bradley v. Zaba (1996), 137 Sask. R. 295. He concluded that Khloe should be responsible to cover only 1/3 of the university expenses and allocated the remaining responsibility to her parents in proportion with their respective incomes.

...

The cases cited and relied upon by the parties to this appeal show that the chambers judge enjoys very broad discretion in determining how to balance the many competing considerations relevant to determining the respective responsibilities of the parents and the child to cover the post-secondary education costs of an adult child still considered to be a child of the marriage for the purpose of the Child Support Guidelines. My review of these cases indicates that there is a growing trend to impose one-third to one-half of the responsibility on the adult child, to be met by part-time employment, scholarships or student loans, depending on the talents and choices of the child, and the balance on the parents, proportional to their respective incomes. This is far from invariable, and depends on the incomes and circumstances of the parties, as set out in the cases cited.

While another judge might have imposed a higher proportion of the burden on Khloe in the instant case, I am unable to conclude that the chambers judge erred in principle or that he significantly misapprehended the evidence before him ...

[Emphasis added.]

[75]         The statement of the principles of appellate review apply in BC, but the statement that there is a trend in the cases to impose one-third to one-half of education expenses on an adult child may not.  In two BC Supreme Court cases cited by the mother, B.(T.K.) v. S.(P.M.), 2008 BCSC 1350 and Poulter v. Poulter, (December 4, 2009, Vancouver Registry E013528), the Court found that a contribution of 25 percent was reasonable, while in Daicar-Gendron v. Gendron, 2004 BCSC 1239, the Court ordered that one child contribute ten percent, while the other child was ordered to contribute 50 percent, of their respective education costs.

[76]         In this case, the total amount of $1,881 contributed by the daughter represents just under one-third of the total education costs incurred in 2008 and 2009.  The father has shown no basis on which to conclude that this amount is not reasonable.

[77]         I would not accede to this ground of appeal.

Conclusion

[78]         I would dismiss the appeal, and order that the mother is entitled to her costs of the appeal.

“The Honourable Madam Justice Levine”

I Agree:

“The Honourable Madam Justice Rowles”

I Agree:

“The Honourable Madam Justice Garson”