



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Neufeld
                v. Neufeld,









2005 BCCA
            7




Date: 20050110




Docket: CA032086

Between:

William
      Peter Neufeld

Appellant

(
Plaintiff
)

And

Barbara
      Joanne Neufeld

Respondent

(
Defendant
)











Before:



The Honourable
            Madam Justice Rowles





The Honourable
            Mr. Justice Low





The Honourable
            Madam Justice Levine









J. Fairburn



Counsel for the Appellant





K.E. McNeilly



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





November 23, 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





January 10, 2005









Written
              Reasons by
:





The Honourable
            Madam Justice Levine





Concurred
              in by:





The Honourable
            Madam Justice Rowles
The Honourable Mr. Justice Low





Reasons for Judgment of the Honourable Madam Justice
        Levine:

Introduction

[1]

This
      appeal concerns the entitlement to child support of an adult child attending
      university full-time, seeking a post-graduate degree in medicine.

[2]

A
      Supreme Court chambers judge found that the parties' daughter, J., was
      entitled to child support as a "child of a marriage" within the
      meaning of s. 2(1) of the
Divorce Act
, R.S.C. 1985, c. 3
      (2d Supp.). He determined the amount of child support payable by the father
      by applying the
Child Support Guidelines
as if J. were under
      the age of majority (under s. 3(2)(a) of the
Guidelines
).
      The father was ordered to pay both the "table amount" and "special
      and extraordinary expenses" of 50 per cent of J.'s educational and
      residential expenses.

[3]

The
      father appeals. He argues that J. is not a "child of the marriage" and
      if she is, she is nonetheless not entitled to the amount of child support
      determined by the chambers judge. He argues that the chambers judge erred
      in his application of the applicable legal principles to the facts in three
      ways: failing to find that J. could finance her education through student
      loans; giving excessive weight to the family plans that she would attend
      medical school; and failing to find that it was inappropriate to order
      that he pay both the "table amount" and a share of J.'s education
      and residential expenses.

[4]

It
      is my opinion that the chambers judge correctly determined that J. is a "child
      of the marriage". In the circumstances of this case, I would not interfere
      with the amount of child support determined to be payable by the father
      except to order that he pay it in two lump sums of $11,000 each (less 50
      per cent of any scholarships, bursaries and awards received by J.) on July
      1 and January 1 of each year that J. attends medical school, commencing
      July 1, 2004.

Background

[5]

The
      parties were married for 27 years before they separated in 1999. They were
      divorced in 2001. They have two children, J., born in 1981 and a son, born
      in 1984. The father is a medical doctor; the mother a homemaker. At the
      time of the application appealed from, J. had an undergraduate degree and
      had been accepted into medical school at the University of British Columbia
      ("UBC"), in accordance with the family's plans for her education
      before the parents' separation. The chambers judge described J. as an "exemplary
      student".

[6]

In
      the "child support" provisions of their separation agreement
      entered into in December 1999, the parties agreed that the father would
      pay child support for the two children in the "Table Amount",
      then agreed to be $1,450 per month. They also agreed that "all costs
      of education" would be "Special or Extraordinary Expenses",
      and they would "share the costs of reasonable Special or Extraordinary
      Expenses, other than medical or dental expenses, equally." The agreement
      provided that:

13.   The obligation
      to pay Child Support ceases in respect of a Child who:

.
      . .

(c)   becomes 19
      years old, unless the Child remains a "child of the marriage" within
      the meaning of the
Divorce Act
because of inability to become self-supporting
      due to illness, disability, the pursuit of education, or other cause.

[7]

After
      a ten-day trial, in June 2002 L. Smith J. made an order varying the separation
      agreement, but the provisions relating to child support were not changed.
      At that time, J. was an undergraduate. The order required the father to:

. . . pay fifty percent (50%) of the tuition for [J.] to complete her
      undergraduate university program, after application of any scholarship
      or bursary money designated for tuition, as a special or extraordinary
      expense;

[8]

There
      were further disagreements between the parties concerning the amount and
      payment of child support by the father, resulting in an order of Bauman
      J. in March 2003 and a settlement in July 2003. These are not directly
      relevant to the issues in this appeal.

[9]

The
      order appealed from was made on June 30, 2004 in response to cross-applications
      by the parties. The mother brought an application in February 2004 for
      an increase in monthly child support based on a redetermination of the
      father's income and an order that the father "pay his proportionate
      share of the children's tuition, education expenses and housing/meal plan
      costs should the children reside in campus". The father sought an
      order that J. was no longer a child of the marriage, effective June 1,
      2004; alternatively, that support for both children be determined in accordance
      with s. 3(2)(b) of the
Guidelines
; and that all payments
      for the two children be paid directly to them or on their behalf by a family
      trust.

[10]

The
      chambers judge determined the father's income for the purposes of the
Guidelines
was
      $170,000. That determination has not been appealed. The chambers judge
      set child support for the two children as the "table amount" of
      $1,915 per month. The father does not dispute his obligation to support
      his son. Child support for the son only would be $1,207 per month.

[11]

The
      mother's income is spousal support of $3,000 per month.

[12]

The
      chambers judge ordered the father to pay, as an extraordinary expense,
      50 per cent, in accordance with the separation agreement, of J.'s education
      and accommodation (outside the home) expenses for four years of medical
      school. These expenses were determined to be $28,181 in first year, $26,608
      in second year, $24,160 in third year and $28,117 in fourth year, based
      on information obtained from the UBC Medical School website.

[13]

Under
      the order, the father would be required to pay (after excluding $1,207
      per month of child support for his son) the following amounts for support
      of J.:




Year 1



$22,586.50



$1,882.20 per month





Year 2



21,800.00



1,816.67 per month





Year 3



20,576.00



1,714.67 per month





Year 4



20,430.50



2,270.05 per month
(for 9 months)





Total



$85,393.00










[14]

On
      the appeal, the father applied to admit new evidence that J. did not accept
      the position in the medical school at UBC but is attending medical school
      at the University of Calgary. The mother initially objected to the admission
      of new evidence although she responded to it, stating in her affidavit
      that the program in Calgary is less expensive than UBC as it is three full
      years instead of four. She submitted a budget for J.'s expenses in Calgary.
      During oral argument, the mother's counsel abandoned her objection to the
      new evidence.

[15]

As
      the new evidence is not the result of any lack of due diligence and is
      relevant to a proper determination of the issues, I would admit the evidence
      put forward by each party.

Child of the Marriage

[16]

Under
      s. 15.1(1) of the
Divorce Act
, a court may make an order "requiring
      a spouse to pay for the support of any or all
children of the marriage
".
      The definition of "child of the marriage", in s. 2(1) of the
Act
,
      includes a child who:

(b)

is
      the age of majority or over and under their [her parents] charge but unable,
      by reason of illness, disability or other cause, to withdraw from their
      charge or to obtain the necessaries of life;

[17]

The
      parties' separation agreement similarly provides that child support will
      cease for a child who is not a "child of the marriage" within
      the meaning of the
Divorce Act
.

[18]

The
      pursuit of education necessary to equip a child with a career qualifies
      as "other cause" for continuing dependence of a child of or over
      the age of majority:
Martin v. Martin
(1988), 26 B.C.L.R.
      (2d) 390 at 393 (C.A.). In determining whether a child pursuing an education
      is unable to withdraw from her parents' charge or obtain the necessaries
      of life a court must consider the surrounding circumstances; mere attendance
      at an educational institution is not sufficient:
Ciardullo v. Ciardullo
(1995),
      15 R.F.L. (4th) 121 at para. 17 (B.C.S.C.).

[19]

A
      list of relevant circumstances was formulated by Master Joyce (as he then
      was) in
Farden v. Farden
(1993), 48 R.F.L. (3d) 60 at para.
      15 (B.C.S.C.) and referred to by this Court in
Darlington v. Darlington
(1997),
      32 R.F.L. (4th) 406 at para. 14 (B.C.C.A.). These factors were considered
      by the chambers judge, who noted that in
Darlington
, this
      Court made it clear that there does not have to be evidence on all of the
      factors in order to establish that a child is a "child of the marriage" because
      she is pursuing an education. Nor should this list be considered to be
      exhaustive of the relevant factors.

[20]

The
      factors outlined in
Farden
are:

(1)   whether
      the child is in fact enrolled in a course of studies and whether it is
      a full-time or part-time course of studies;

(2)   whether
      or not the child has applied for or is eligible for student loans or other
      financial assistance;

(3)   the career
      plans of the child, i.e. whether the child has some reasonable and appropriate
      plan or is simply going to college because there is nothing better to do;

(4)   the ability
      of the child to contribute to his own support through part-time employment;

(5)   the age
      of the child;

(6)   the child's
      past academic performance, whether the child is demonstrating success in
      the chosen course of studies;

(7)   what plans
      the parents made for the education of their children, particularly where
      those plans were made during cohabitation;

(8)   at least in the case of a mature child who has
      reached the age of majority, whether or not the child has unilaterally
      terminated a relationship from the parent from whom support is sought.

[21]

The
      father's objections to the chambers judge's finding that J. was a "child
      of the marriage" focus on the second and seventh of the factors set
      out in
Farden
. He claims that the chambers judge underemphasized
      the requirement that J. seek student loans to finance her education and
      overemphasized the parents' pre-separation plans for her education.

[22]

These
      two alleged errors may be resolved by the approach taken in
Darlington
.
      The factors set out in
Farden
are not a set of minimum criteria
      all of which must be satisfied. They are relevant factors to be considered,
      along with others that are relevant in the circumstances. The determination
      is fact-specific.

[23]

The
      first alleged error is essentially that the chambers judge failed to find
      that J. has to exhaust other sources of financial assistance, including
      student loans, before she can be found to be unable to withdraw from her
      parents' charge or obtain the necessaries of life.

[24]

As
      the chambers judge noted, the availability of student loans is "merely
      one factor among many to be considered". It is not necessary that
      the child exhaust every source of funding. In this case, this father has
      the means to assist J. with her educational expenses. She is a diligent,
      exemplary student who has contributed to her educational expenses by qualifying
      for and receiving scholarships, bursaries and grants. In fact, the father
      claims that he was not required to contribute to the first two years of
      her undergraduate degree because she received scholarships and grants that
      exceeded her expenses. The chambers judge provided for scholarships, bursaries
      and grants to be deducted from her expenses in determining the amounts
      payable by her parents.

[25]

J.
      will likely need further training after obtaining her M.D. which will limit
      her ability to repay loans on graduation. She should not be put in the
      position of having to incur large amounts of debt to achieve what is agreed
      to be a realistic, achievable educational goal.

[26]

The
      second alleged error is that the chambers judge overemphasized the fact
      that the parents had always planned that J. would go to medical school
      and "follow her father into the family career". The father claims
      that by finding this factor to be "particularly compelling",
      the chambers judge failed to address the "core inquiry" of whether
      she was unable to withdraw from her parents' charge.

[27]

The
      father cited in support of his argument
Maurice v. Maurice
,
      [1993] B.C.J. No. 1461 (S.C.)(QL), where the Court found that daughters
      aged 26 and 21, pursuing "achievable, realistic and legitimate" educational
      goals in second degrees were no longer entitled to child support. The judge
      in that case considered the age, educational levels and abilities of the
      children, and also the "age of the respondent, his income and the
      state of his health".

[28]

In
      this case, the evidence is that the father has sufficient income to support
      J.'s achievable, realistic and legitimate educational goals, and there
      is no evidence that anything about his age or health would limit his ability
      to assist her. Nothing in the separation agreement precluded post-graduate
      education.

[29]

There
      is no general principle that a child seeking a second degree does not qualify
      for child support. As stated by Freeman J.A. for the Nova Scotia Court
      of Appeal in
Martell v. Height
(1994), 3 R.F.L. (4th) 104
      at para. 8:

There is no arbitrary cut-off point based either on age or scholastic
      attainment, although as these increase the onus of proving dependency grows
      heavier.

See also:
Jamieson v. Jamieson
(1995),
      14 R.F.L. (4th) 354 at para. 23 (N.B.C.A.).

[30]

The
      jurisprudence supports the view that there is a wide range of factors to
      be considered in the determination of whether a child is a "child
      of the marriage" and that individual factors will be of varying importance
      in different cases. All of the relevant factors must be considered. There
      is no arbitrary cut-off point based on the number of degrees or the eligibility
      of the student for financial assistance.

[31]

The
      father has not demonstrated that the chambers judge made any error in principle
      or misapprehended the facts of this case so as to permit this Court to
      interfere with the determination that J. is a child of the marriage. I
      would dismiss this ground of appeal.

Amount of Child Support

[32]

The
Guidelines
provide
      two ways to determine the amount of child support for a child of the age
      of majority or over. Section 3(2) provides:

Unless otherwise provided
      under these Guidelines, where a child to whom a child support order relates
      is the age of majority or over, the amount of the child support order is

(a)   the amount determined by applying these Guidelines as if the child
      were under the age of majority; or

(b)   if the court
      considers that approach to be inappropriate, the amount that it considers
      appropriate, having regard to the condition, means, needs and other circumstances
      of the child and the financial ability of each spouse to contribute to
      the support of the child.

[33]

Section
      7 of the
Guidelines
is also relevant. It provides that an
      order for child support may include provision for "special and extraordinary
      expenses", including, in s. 7(1)(e), "expenses for post-secondary
      education". In making an order for payment of special and extraordinary
      expenses, the court is to take into account

. . . the necessity of the expense in relation to the child's best interests
      and the reasonableness of the expense in relation to the means of the spouses
      and those of the child and to the family's spending pattern prior to the
      separation:

[34]

Section
      7(2) provides for the sharing of special and extraordinary expenses. It
      reads:

The guiding principle in determining the amount of an
      expense referred to in subsection (1) is that the expense is shared by
      the spouses in proportion to their respective incomes after deducting from
      the expense, the contribution, if any, from the child.

[35]

In
      rejecting the father's argument that he should apply s. 3(2)(b) of the
Guidelines
,
      the chambers judge did not consider the developing jurisprudence in B.C.
      Supreme Court and other jurisdictions that has found that where an adult
      student is living away from home, determining child support by using the "table
      amount" and adding "special and extraordinary expenses",
      as directed by s. 3(1) of the
Guidelines
for children under
      the age of majority is, in principle, "inappropriate". In those
      cases, child support has instead been determined by applying s. 3(2)(b).

[36]

The
      choice between ss. 3(2)(a) and 3(2)(b) of the
Guidelines
when
      determining child support for an individual who remains a child because
      of his pursuit of post-secondary education was considered by Pitfield J.
      in
Whitley v. Whitley
, [1997] B.C.J. No. 3116 (S.C.)(QL)
      and
Johnson v. Johnson
, [1998] B.C.J. No. 1080 (S.C.)(QL),
      and by Martinson J. in
Griffiths v. Griffiths
, [1998] B.C.J.
      No. 2000 (S.C.)(QL) and
Wesemann v. Wesemann
(1999), 49 R.F.L.
      (4th) 435 (B.C.S.C.).

[37]

In
Johnson
,
      Pitfield J. concluded (at para. 12) that computing child support by reference
      to the tables in the
Guidelines
is not appropriate for students
      who live at home or away from home depending on convenience, affordability
      and need. He found that the cost of post-secondary education, including
      tuition and institutional expenses, room and board or equivalent expenses,
      books, travel and miscellaneous expenses reasonably attributable to or
      arising from the pursuit of that education, should be shared by the parents
      in proportion to their incomes computed with regard for the
Guidelines
,
      after taking into account the amount the student can reasonably contribute.
      Mr. Justice Pitfield commented that s. 7 of the
Guidelines
,
      which provides for the determination and proportional sharing of "special
      or extraordinary expenses", including "expenses for post-secondary
      education", contemplated such an approach. He expressed the view that
      such an order could be made whether or not an order for basic child support
      in the "table amount" was made.

[38]

In
Wesemann
,
      Martinson J. formulated (at para. 6) a four-step test for determining the "appropriate" amount
      of child support under s. 3(2) of the
Guidelines
. Those four
      steps are:

Step One

Decide whether the
      child is a "child of the marriage" as defined in the
Divorce
      Act
? If s/he is not, that ends the matter.

Step Two

Determine whether
      the approach of applying the
Guidelines
as if the child were under
      the age of majority ("the usual
Guidelines
approach")
      is challenged. If that approach is not challenged, determine the amount
      payable based on the usual
Guideline
approach.

Step Three

If the usual
Guidelines
approach
      is challenged, decide whether the challenger has proven that the usual
Guidelines
approach
      is inappropriate. If not, the usual
Guidelines
amount applies.

Step Four

If the usual
Guidelines
amount
      is inappropriate, decide what amount is appropriate, having regard to the
      condition, means, needs and other circumstances of the child and the financial
      ability of each spouse to contribute to the support of the child?



[39]

The
      second and third steps of the test as articulated by Martinson J. require
      that one of the parties challenge the application of the "usual
Guidelines
approach" to
      determining child support. There may be cases, however, where a party has
      not challenged the appropriateness of the application of s. 3(2)(a), but
      the court considers, on the facts of the particular case, that it is inappropriate.
      In my opinion, the absence of a challenge does not preclude consideration
      of s. 3(2)(b) and in such a case, the court should determine child support
      under that provision.

[40]

In
      the case of an adult student living away from home, Martinson J. provided
      the following rationale for finding that the "usual
Guidelines
approach" is
      inappropriate (at paras. 16-18):

The
      usual
Guidelines
approach is based on certain factors that normally
      apply to a child under the age of majority. That is, the child resides
      with one or both parents. The child is generally not earning an income
      and is dependent on his or her parents.

The
      usual
Guidelines
approach is, in most cases, based on the understanding
      that, though only the income of the person paying is used to calculate
      the amount payable, the other parent makes a significant contribution to
      the costs of that child's care because the child is residing with him or
      her.

The closer the circumstances of the child are to those
      upon which the usual
Guidelines
approach is based, the less likely
      it is that the usual
Guidelines
calculation will be inappropriate.
      The opposite is also true. Children over the age of majority may reside
      away from home and/or earn a significant income. If a child is not residing
      at home, the nature of the contribution towards the child's expenses may
      be quite different.

[41]

Whitley
,
Johnson
and
Wesemann
have
      been applied by other Supreme Court judges in determining child support
      for students living away from home under s. 3(2) of the
Guidelines
.
      In
Kembi v. Kembi
, [1999] B.C.J. No. 165 (S.C.)(QL);
McLean
      v. McLean
, 2000 BCSC 433;
Sapergia v. Sapergia
, 2001
      BCSC 818;
Karhoffer v. Karhoffer
, 2002 BCSC 1570; and
Watts
      v. Willie
, 2004 BCSC 1136, the Court held that the "usual
Guidelines
approach" provided
      under s. 3(2)(a) was inappropriate and determined the amount of child support
      under s. 3(2)(b) of the
Guidelines
, taking into account the
      needs and contributions of the student and the ability of the parents to
      assist financially. A similar approach has been adopted in other provinces:
      see
Power v. Hunt
(2000), 196 Nfld. & P.E.I.R. 149, [2000]
      N.J. No. 315 (S.C.)(QL);
Hagen v. Rankin
(2002), 24 R.F.L.
      (5th)

38 (Sask.C.A.);
Samson v. Samson
(2003),
      49 R.F.L. (5th) 202 (Nfld. S.C.(T.D.)).

[42]

In
      my opinion, in principle, support for an adult child who is entitled to
      child support because of his or her attendance at a post-secondary institution
      generally should be determined under s. 3(2)(b). The "table amount",
      as noted by Martinson J. in
Wesemann
, contemplates a contribution
      by the non-custodial parent to the expenses borne by the custodial parent
      in providing a home for the child. The fact that the "table amount" increases
      incrementally and not absolutely for additional children supports that
      interpretation of the intention of the
Guidelines
. The "table
      amount" does not contemplate a child's contribution, which is an important
      factor in considering the amount of support a student requires.

[43]

None
      of the cases I have reviewed considered the interaction among s. 3(2)(b),
      s. 7 and a separation agreement. The relevance of that interaction in this
      case is that the parties agreed that the father would pay the "Table
      Amount" and that "all costs of education" would be "special
      and extraordinary expenses" they would share equally.

[44]

In
Karhoffer
,
      McKinnon J. suggested that if s. 3(2)(b) is applied, then s. 7 should not
      be considered and the court must decide what amount is appropriate. He
      noted that ss. 3(2)(b) and 7(1) both require consideration of the means
      of the child. He cited
McLean
as authority for the proposition
      that where the order is made under s. 3(2)(b) instead of s. 7, the court
      may nonetheless apply the expense sharing principle (see paras. 70-72).

[45]

In
      my view, child support determined under s. 3(2)(b) does not necessarily
      preclude a specific award for "special and extraordinary expenses" under
      s. 7, where appropriate. The existence of a separation agreement that expressly
      deals with specific expenses may lead to such an approach.

[46]

Such
      an approach would have been open to the chambers judge. The order made
      is, however, supportable in the particular circumstances of this case.
      The chambers judge followed the provisions of the separation agreement
      in determining the amount of child support payable for J. as the total
      of the "Table Amount" and 50 per cent of the "costs of education".

[47]

The
      mother did not cross-appeal the refusal of the chambers judge to order
      that the father pay J.'s education expenses on a proportionate basis or
      seek an increased amount of child support. She originally sought an order
      dismissing the appeal, then requested at the hearing that the Court direct
      that child support for J. be paid semi-annually in two lump sums. The total
      of the "Table Amount" (which amounts to an increment for J. of
      just under $8,500 per year) and 50 per cent of the estimated UBC education
      expenses and rent provides a measure of child support that was apparently
      acceptable to the mother.

[48]

The
      father sought an order allowing the appeal on the basis that J. was not
      a "child of the marriage", but did not make any submission on
      the appropriate amount of child support if we held otherwise.

[49]

I
      would order, as requested by the mother, that the father pay child support
      in the amount of $11,000 on each of July 1 and January 1 of each year that
      J. attends medical school, commencing July 1, 2004. Any adjustment for
      (50 per cent of) scholarships, bursaries and grants received by J. will
      be made from the payment next following the receipt of the award.

The mother will obtain from J. a copy of her academic
      transcripts and all information concerning the award of any scholarships,
      bursaries and other financial awards forthwith upon notification. The mother
      will promptly provide this information to the father.

[50]

The
      father has been paying J.'s child support to her directly from a family
      trust. He has agreed to indemnify J. for any income taxes payable by her
      as a result of this arrangement. The chambers judge approved the direct
      payments to J. from the family trust. The mother has not appealed that
      part of his order, and I see no reason to interfere with it in these circumstances
      in any event.

Conclusion

[51]

J.
      is a "child of the marriage" and entitled to child support from
      her father. The amount of child support determined by the chambers judge
      is supportable in the circumstances of this case and was not challenged
      by the mother on the appeal. I would allow the appeal in part, only to
      vary the order appealed from to provide that the father pay, either directly
      or from the family trust, the sum of $11,000 to J. on July 1 and January
      1 of each year that she is attending medical school, commencing July 1,
      2004.

[52]

Subject
      to any submissions the parties may wish to make concerning costs, I would
      order that the mother is entitled to the costs of the appeal.

The Honourable Madam Justice Levine

I AGREE:

The Honourable Madam Justice Rowles

I AGREE:

The Honourable Mr. Justice Low


