L.A.U. v. L.L.L., (2016) 382 Nfld. & P.E.I.R. 349 (PEICA)

• Judge: Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.
• Case Date: July 29, 2016
• Jurisdiction: Prince Edward Island
• Citations: (2016), 382 Nfld. & P.E.I.R. 349 (PEICA)

L.A.U. v. L.L.L. (2016), 382 Nfld. & P.E.I.R. 349 (PEICA);

    1183 A.P.R. 349

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. AU.026

L.A.U. (appellant) v. L.L.L. (respondent)

(S1-CA-1328; 2016 PECA 15)

Indexed As: L.A.U. v. L.L.L.

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.

July 29, 2016.

Summary:

A father's application to terminate child support for an adult child attending university was dismissed. The mother's application for an order that the child's tuition/university expenses constituted an extraordinary expense under s. 7 of the Child Support Guidelines was allowed. The father appealed.

The Prince Edward Island Court of Appeal allowed the appeal in part. The trial judge did not err in finding that the child remained a child of the marriage entitled to child support. The trial judge did err, in calculating the father's proportionate share of s. 7 expenses by failing to take into account tax credits available to the child, in double counting some expenses and in overstating the father's proportionate share by failing to deduct spousal support from his income and failing to include in the mother's income spousal support and CPP survivor's benefits.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - Awards - To children and children defined - A child's biological father died when she was four - The mother remarried - Her new father stood in loco parentis and was ordered to pay child support after he and the mother separated and divorced - The child refused any relationship with the father - When the child turned 18, and was enrolled to attend university, the father applied to terminate child support on the ground that the child was no longer a child of the marriage - Primarily, the father argued that the child's unilateral termination of the parent-child relationship was determinative - The Prince Edward Island Court of Appeal affirmed that the child remained a child of the marriage notwithstanding her decision to terminate her relationship with the father - Due to her university attendance, the child was not able to withdraw from the charge of her parents - The father had no contact with the child since September 2013, when there was an incident resulting in the father being subjected to a s. 810 Criminal Code recognizance to have no contact with the child - The father breached that recognizance, was criminally convicted and was placed on probation for one year - In the year since that probation order expired, the father made no effort to rekindle the relationship - The court stated that "The father's failure to do anything that might entice the child to change her mind may well lead one to the conclusion that he does not want to patch up his relationship with his daughter so much as to seize the chance to terminate child support" - See paragraphs 23 to 31.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non-divorce cases) - Special or extraordinary expenses - A child turned 18 in July 2015 - In a November 2014 agreement between the separated parents, the father agreed to pay child support and s. 7 expenses under the Child Support Guidelines - That agreement was incorporated into a February 2015 corollary relief order - Five months later, after the child turned 18 and was heading to university (as expected), the father applied to terminate child support - The mother cross-applied to determine the husband's proportionate share of the s. 7 expenses relating to the child's university tuition and other expenses - The trial judge found that the child remained a child of the marriage entitled to child support notwithstanding the child's termination of the child-parent relationship - The father was ordered to pay his proportionate share of the child's university expenses - The Prince Edward Island Court of Appeal allowed the father's appeal respecting his proportionate share of those expenses - The expenses determined by the trial judge were too high, as they failed to account for the tax credits available to the mother as a result of the child being in university, and over-calculated the expenses by approximately $1,300 - Further, in calculating the mother's and father's respective incomes, the trial judge erred in failing to deduct spousal support from the father's income and in failing to include spousal support and CPP survivor's benefits in the wife's income - Accordingly, the court made the appropriate calculations to reduce the father's proportionate share of s. 7 expenses for 2015-2016 - See paragraphs 35 to 93.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See Family Law - Topic 4045.4 ].

Counsel:

Peter C. Ghiz, for the appellant;

Sophie P. MacDonald, for the respondent.

This appeal was heard on June 2, 2016, at Charlottetown, P.E.I., before Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A., of the Prince Edward Island Court of Appeal.

On July 29, 2016, Mitchell, J.A., delivered the following judgment for the Court of Appeal.