Wahl v. Wahl, (2000) 257 A.R. 212 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 13, 2000
• Citations: (2000), 257 A.R. 212 (QB);2000 ABQB 10;257 AR 212;2 RFL (5th) 307;[2000] CarswellAlta 13;[2000] AJ No 29 (QL)

Wahl v. Wahl (2000), 257 A.R. 212 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JA.067

Carole Dale Wahl (applicant) v. Edmund Wahl (respondent)

(Action No. 4803 70834)

Indexed As: Wahl v. Wahl

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

January 13, 2000.

Summary:

The parties divorced in 1990 after 16 years of marriage. They had one child. The father had been paying $1,700/month but stopped making payments after the daughter moved out on her own and renounced her relation­ship with him. The mother applied to vary the amount of child support in accordance with the Federal Child Support Guidelines. The father argued, inter alia, that the child was no longer a child of the marriage. The father was ordered to pay interim child support of $1,200/month.

The Alberta Court of Queen's Bench allowed the application with certain condi­tions.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4014 and first Fami­ly Law - Topic 4045.11 ].

Family Law - Topic 4006.3

Divorce - Corollary relief - Maintenance awards - Awards to children - Child's status to bring application - The parties divorced in 1990 after 16 years of mar­riage - They had one child - The father paid $1,700/month in child support - The mother applied to vary the amount of child support in accordance with the Federal Child Support Guidelines - Counsel for the child (now 19) sought leave to bring the application on the child's behalf - The Alberta Court of Queen's Bench held that the child did not have status to bring the application and denied her application for leave - The case law appeared settled that non-spouses did not have standing and were precluded from bringing an ap­plication - Also, the Guidelines referred to "spouse" in relation to the applicant and respondent, never the child - See para­graphs 20 to 26.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards to children and children defined - A divorced mother applied to vary support for the parties' one child - The child, now 19, lived on her own - In 1998, a $12,600 RESP was paid directly to her and she spent most of it - She was now enrolled in a college in Ontario - The child had renounced her relationship with her father - The father argued, inter alia, that the child had been living on her own and was no longer a child of the marriage - The father earned $105,191 in 1998 - He was retiring and forcecast his annual in­come to be $63,21.96 - The mother had little income - The Alberta Court of Queen's Bench concluded that the child remained a child of the marriage - The court stated that the quality of the parent/child relationship rarely determined the matter - The father was ordered to pay $1,188.52/month during the school year only (September to April) - The child was required to account for $11,455 of the RESP which was reflected in the support order - See paragraphs 28 to 83.

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support guidelines - General (incl. inter­pretation) - [See Family Law - Topic 4006.3 ].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines - Children over the age of majority - A divorced mother applied to vary support for the parties' one child - The child, now 19, lived on her own - She was enrolled in a college in Ontario - The Alberta Court of Queen's Bench stated that in circumstances where adult children were attending university or college away from home, the courts normally did not establish child support based upon the Guideline amount but rather resorted to the condition, means and needs consideration set forth in s. 3(2)(b) of the Guidelines - The rationale was that the economics of scale were reflected in the Guidelines' table amounts where the child was residing in the same household as the recipient parent - The court followed this established practice and looked carefully at the s. 7 expenses claimed by the child in order to assess the appropriate quantum of child support - See paragraph 76.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines - Children over the age of majority - [See Family Law - Topic 4014 ].

Cases Noticed:

Tapson v. Tapson (1970), 2 R.F.L. 305 (Ont. C.A.), refd to. [para. 21].

Busko v. Busko (1990), 28 R.F.L.(3d) 399 (Ont. H.C.), refd to. [para. 23].

Seary v. Seary, [1994] O.J. No. 3929 (Gen. Div.), refd to. [para. 24].

Whitton v. Whitton (1989), 34 O.A.C. 31; 21 R.F.L.(3d) 261 (C.A.), refd to. [para. 29].

Elliot v. Elliot, [1993] B.C.J. No. 328 (S.C.), refd to. [para. 29].

Ciardullo v. Ciardullo (1995), 15 R.F.L.(4th) 121 (B.C.S.C.), refd to. [para. 29].

C.M.P. v. P.E.P. (1999), 257 A.R. 36 (Q.B.), refd to. [para. 30].

Farden v. Farden (1993), 48 R.F.L.(3d) 60 (B.C.S.C.), appld. [para. 30].

Darlington v. Darlington (1998), 99 B.C.A.C. 134; 162 W.A.C. 134; 32 R.F.L.(4th) 406 (C.A.), refd to. [para. 31].

Wesemann v. Wesemann (1999), 13 B.C.T.C. 233 (S.C.), refd to. [para. 31].

Bates v. Bates (1995), 165 A.R. 71; 89 W.A.C. 71 (C.A.), refd to. [para. 32].

Fair v. Jones, [1999] N.W.T.J. No. 44 (S.C.), refd to. [para. 33].

Sherlow v. Zubko (1999), 247 A.R. 66 (Q.B.), refd to. [para. 34].

Broumas v. Broumas (1998), 233 A.R. 1 (Q.B.), refd to. [para. 34].

Jackson v. Jackson (1988), 69 Sask.R. 148, refd to. [para. 34].

Duncan v. Duncan (1989), 74 Sask.R. 100 (Q.B.), refd to. [para. 34].

Van de Pol v. Van de Pol (1996), 179 A.R. 221 (Q.B.), refd to. [para. 35].

Evans v. Evans (1998), 164 Sask.R. 101 (Q.B.), refd to. [para. 36].

Degagne v. Sargeant (1999), 232 A.R. 355; 195 W.A.C. 355; 47 R.F.L.(4th) 131 (C.A.), refd to. [para. 37].

Welsh v. Welsh (1998), 79 O.T.C. 81 (Gen. Div.), refd to. [para. 38].

Zaba v. Bradley (1996), 140 Sask.R. 297 (Q.B.), refd to. [para. 40].

Krueger v. Tunison (1999), 183 Sask.R. 255 (Q.B. Fam. Div.), refd to. [para. 40].

Jansen v. Jansen and Clarkson (1980), 18 R.F.L.(2d) 152 (B.C.S.C.), refd to. [para. 40].

Louise v. Scheuer (1995), 15 B.C.L.R.(3d) 270 (S.C.), refd to. [para. 40].

Newman v. Thompson (1997), 118 Man.R.(2d) 177; 149 W.A.C. 177 (C.A.), refd to. [para. 41].

Gamache v. Gamache (1999), 241 A.R. 388 (Q.B.), refd to. [para. 45].

Innes v. Innes (1994), 154 A.R. 346 (Q.B.), refd to. [para. 46].

Chaban v. Chaban (1985), 37 Man.R.(2d) 170 (Q.B.), refd to. [para. 46].

Law v. Law (1986), 2 R.F.L.(3d) 458 (Ont. H.C.), refd to. [para. 52].

Anderson v. Anderson (1997), 27 R.F.L.(4th) 323 (B.C.S.C.), refd to. [para. 57].

Dalep v. Dalep (1987), 11 R.F.L.(3d) 359 (B.C.S.C.), refd to. [para. 58].

Apthorp v. Shearing (1998), 42 R.F.L.(4th) 287 (Ont. Gen. Div.), refd to. [para. 59].

Wieland v. Wieland (1994), 3 R.F.L.(4th) 56 (Ont. Gen. Div.), refd to. [para. 59].

Heon v. Heon (1989), 69 O.R.(2d) 758 (H.C.), refd to. [para. 59].

James v. Morris, [1997] A.J. No. 650 (Q.B.), refd to. [para. 60].

Jackson v. Jackson, [1973] S.C.R. 205; 8 R.F.L. 172, refd to. [para. 68].

Achkewich v. Achkewich (1998), 220 A.R. 385 (Q.B.), refd to. [para. 70].

Paton v. Bushko, [1999] Sask.R. Uned. 7 (Q.B.), refd to. [para. 76].

Wilkins v. Wilkins (1998), 204 N.B.R.(2d) 70; 520 A.P.R. 70; 82 A.C.W.S.(3d) 332 (Q.B.), refd to. [para. 76].

Merritt v. Merritt (1999), 98 O.T.C. 321 (S.C.), refd to. [para. 76].

Penney v. Boland (1999), 175 Nfld. & P.E.I.R. 1; 537 A.P.R. 1 (Nfld. U.F.C.), refd to. [para. 76].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2 [para. 28].

Authors and Works Noticed:

McLeod, James, Case Comment, Evans v. Evans (1998), 164 Sask.R. 101; 35 R.F.L.(4th) 158 (Q.B.) generally [para. 64].

Counsel:

Carla M. Odishaw (Odishaw & Odishaw), for the applicant;

Brenda Stothert-Kennedy (Pollock Stoth­ert-Kennedy Rollins), for the respon­dent.

This application was heard before John­stone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 13, 2000.