P.T. v. R.B. et al., (2004) 361 A.R. 163 (CA)

• Judge: Côté, Costigan and Paperny, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 06, 2004
• Citations: (2004), 361 A.R. 163 (CA);2004 ABCA 244

P.T. v. R.B. (2004), 361 A.R. 163 (CA);

    339 W.A.C. 163

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JL.115

P.T. and P.Tr. (respondents/applicants) v. R.B. (appellant/respondent)

(0303-0066-AC; 2004 ABCA 244)

Indexed As: P.T. v. R.B. et al.

Alberta Court of Appeal

Côté, Costigan and Paperny, JJ.A.

July 9, 2004.

Summary:

An unmarried couple's daughter was over 18 and attending university. The father applied to terminate support on the ground that s. 16(2)(c) of the Parentage and Maintenance Act only provided a support obligation "until the child reached the age of 18 years". The mother applied for an order that s. 16(2)(c) was inconsistent with the equality guarantee under s. 15 of the Charter.

The Alberta Court of Queen's Bench, in a decision reported at 296 A.R. 232., held that the Parentage and Maintenance Act was constitutional on the basis that an adult child of unmarried parents could apply for maintenance under the Maintenance Order Act (MOA). The daughter was added as a party and sought support under the MOA.

The Alberta Court of Queen's Bench ordered the father to pay $700 per month while the daughter was in full-time attendance at a recognized post-secondary institution until she completed her first degree or for five years, whichever occurred first. The court also awarded the daughter retroactive support. The father appealed the second decision.

The Alberta Court of Appeal dismissed the appeal.

Editor's note: certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - After a daughter of unmarried parents turned 18, the father applied to terminate support, arguing that s. 16(2)(c) of the Parentage and Maintenance Act only provided a support obligation "until the child reached the age of 18 years" - The mother challenged the constitutionality of s. 16(2)(c) - In August 2001, a chambers judge held that a child of unmarried parents over the age of 18 could apply for maintenance under the Maintenance Order Act (MOA) - The daughter was added as a party and sought support under the MOA - On October 31, 2002, the chambers judge ordered the father to pay support retroactive to September 2001 on the ground that he had jurisdiction to order support after his first decision - The Alberta Court of Appeal affirmed the retroactive support order - After the chambers judge's first decision was pronounced, the daughter was entitled to seek support - Since then, the father had been aware of the daughter's need, her intention to seek support and the extent of the proposed obligation - Whether or not the daughter was a party during entire period was irrelevant - See paragraphs 45 to 51.

Family Law - Topic 2342

Maintenance of wives and children - Maintenance of children - Status to apply - An adult daughter of unmarried parents was attending university - The father applied to terminate support, arguing that s. 16(2)(c) of the Parentage and Maintenance Act only provided a support obligation "until the child reached the age of 18 years" - The mother challenged the constitutionality of s. 16(2)(c) - A chambers judge held that the Parentage and Maintenance Act was constitutional on the basis that an adult child of unmarried parents could apply for maintenance under the Maintenance Order Act (MOA) - Section 2(1) of the MOA provided, inter alia, that a father or mother of "any ... destitute person who is not able to work" were required to provide "maintenance" for that person - The chambers judge read the term "destitute" to include an inability to withdraw from parental care because of full-time attendance at an educational institution - Although the issue was no longer being appealed, the Alberta Court of Appeal opined that "the words of the statute were capable of the meaning ascribed to them by the chambers judge" - The court discussed the concept of "destitute" - See paragraphs 14 to 27.

Family Law - Topic 2342

Maintenance of wives and children - Maintenance of children - Status to apply - Section 2(1) of the Maintenance Order Act provided, inter alia, that a father or mother of "any ... destitute person who is not able to work" were required to provide "maintenance" for that person - A chambers judge awarded support to an adult child of unmarried parents who was attending university - He did so on an expanded definition of "destitute" - The father appealed - The Alberta Court of Appeal stated that in keeping with Charter values, the test for determining eligibility for support of adult children of unmarried parents was the same as that under the Divorce Act: was the child, in law, dependent upon the parent, in whole or in part - The court referred to factors to be considered in determining the issue - Further, the same considerations on quantum should apply to adult children of unmarried parents as to those of married parents (i.e., in accordance with s. 3(2) of the Federal Child Support Guidelines) - See paragraphs 28 to 41.

Family Law - Topic 2342.1

Maintenance of wives and children - Maintenance of children - Dependant child - An unmarried couple's daughter was over 18 and attending university full-time - Her goal was to complete a Bachelor of Arts degree and then apply to the Master's program in psychology - She received student loans, worked part-time and lived modestly - The daughter applied for an order requiring the father to pay support under the Maintenance Order Act - The father's income was $41,000 and was not subject to income tax - A chambers judge held that the daughter was in need of support and ordered the father to pay the daughter $700 per month for the months that she was in full-time attendance at university - The Alberta Court of Appeal dismissed the father's appeal, holding that the evidence supported the chambers judge's conclusion that the daughter had established her dependency - See paragraphs 42 to 44.

Family Law - Topic 2342.1

Maintenance of wives and children - Maintenance of children - Dependant child - [See both Family Law - Topic 2342 ].

Family Law - Topic 2343

Maintenance of wives and children - Maintenance of children - When available - [See both Family Law - Topic 2342 and first Family Law - Topic 2342.1 ].

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See Family Law - Topic 2211 ].

Infants - Topic 2551.2

Parentage of children - Support and other claims - Retroactive order - [See Family Law - Topic 2211 ].

Infants - Topic 2569.9

Parentage of children - Support and other claims - Post-secondary education - [See first Family Law - Topic 2342 and first Family Law - Topic 2342.1 ].

Words and Phrases

Destitute - The Alberta Court of Appeal discussed the concept of "destitute" as used in s. 2(1)(b) of Maintenance Order Act, R.S.A. 1980, c. M-1 - See paragraphs 15 to 20.

Cases Noticed:

Massingham-Pearce v. Konkolus (1995), 170 A.R. 10 (Q.B.), refd to. [para. 5].

Pollard v. Pollard (1999), 257 A.R. 36 (Q.B.), refd to. [para. 11].

Farden v. Farden (1983), 48 R.F.L.(3d) 60 (B.C.S.C.), refd to. [para. 11].

Tapson v. Tapson (1969), 2 R.F.L. 305 (Ont. C.A.), refd to. [para. 11].

Jackson v. Jackson, [1973] S.C.R. 205, refd to. [para. 11].

Bates v. Bates (1995), 165 A.R. 71; 89 W.A.C. 71 (C.A.), refd to. [para. 11].

Wahl v. Wahl (2000), 257 A.R. 212 (Q.B.), refd to. [para. 11].

R. v. Wilson, [1934] 1 D.L.R. 295 (Alta. C.A.), refd to. [para. 15].

Attorney General v. Merthyr Tydfil Union, [1900] 1 Ch. 516 (C.A.), refd to. [para. 17].

Lewisham Union v. Nice, [1924] 1 K.B. 618 (D.C.), refd to. [para. 17].

St. Saviour's Union v. Burbridge, [1900] 2 Q.B. 695 (D.C.), refd to. [para. 17].

Poplar Guardians v. Martin, [1905] 1 K.B. 718 (D.C.), refd to. [para. 17].

State v. Waller (1913), 136 Pac. 213; 90 Kans. 829; 49 L.R.A.(N.S.) 588 (C.A.), refd to. [para. 17].

State v. Sayre (1928), 222 N.W. 20; 206 Iowa 1334 (C.A.), refd to. [para. 17].

State v. Weldin (1937), 189 Atl. 586 (Del. C.A.), refd to. [para. 17].

State v. Greer (1966), 144 N.W.2d 322; 259 Iowa 367, refd to. [para. 17].

Stern v. Stern (1984), 473 Atl.2d 56; 58 Md. App. 280 (C.A.), refd to. [para. 17].

St. John v. State (1927), 113 So. 321; 22 Ala. App. 115 (C.A.), refd to. [para. 21].

Walker v. McDermott, [1931] S.C.R. 94, refd to. [para. 21].

Baggett v. State (1932), 14 Pac.2d 952; 54 Okla. Cr. 92 (C.C.A.), refd to. [para. 21].

Acworth v. Acworth, [1943] P. 21 (C.A.), refd to. [para. 21].

Kallin v. Kallin, [1944] S.A.S.R. 73, refd to. [para. 21].

Borthwick, Re, [1949] 1 All E.R. 472; [1949] Ch. 395, refd to. [para. 21].

State v. Brown (1961), 107 N.W.2d 47; 259 Minn. 284, refd to. [para. 21].

Oil Tpt. v. Jordan (1996), 472 S.E.2d 291; 22 Va. App. 633 (C.A.), refd to. [para. 21].

T.L.W. v. D.C. (1997), 200 A.R. 357; 146 W.A.C. 357 (C.A.), refd to. [para. 33].

Olson v. Olson (2003), 288 A.R. 379; 320 W.A.C. 379; 225 D.L.R.(4th) 735 (C.A.), refd to. [para. 35].

M.C. v. V.Z. (1998), 228 A.R. 283; 188 W.A.C. 283 (C.A.), refd to. [para. 37].

Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134 (C.A.), refd to. [para. 39].

Vandervort v. Brettler (1989), 22 R.F.L.(3d) 160 (H.C.), affd. [1997] O.A.C. Uned. 144 (C.A.), refd to. [para. 39].

Alberta (Director, Parentage and Maintenance Act) v. D.G.S. - see M.L.B. v. D.G.S.

M.L.B. v. D.G.S. (1992), 131 A.R. 94; 25 W.A.C. 94 (C.A.), refd to. [para. 41].

Hunt v. Smolis-Hunt (2001), 286 A.R. 248; 253 W.A.C. 248; 205 D.L.R.(4th) 712; 2001 ABCA 229, refd to. [para. 46].

Statutes Noticed:

Maintenance Order Act, R.S.A. 1980, c. M-1, sect. 2(1)(b) [para. 9].

Counsel:

L. Robinton, for the appellant, R.B.;

No appearance for the respondent, P.T.;

E.G. Rice, Q.C., for the respondent, P.Tr.

This appeal was heard on May 6, 2004, by Côté, Costigan and Paperny, JJ.A., of the Alberta Court of Appeal. The following decision of the court was delivered by Paperny, J.A., and filed at Edmonton, Alberta, on July 9, 2004.