March 8, 2024
Child Support Variations and Disability: A Case Study
In the realm of family law, navigating child support arrangements can be difficult, especially when circumstances evolve over time. In a recent B.C. Supreme Court case, A.E.P. v. L.E.P., 2024 BCSC 376 the father sought to alter the terms of child support for one of their children, A1, based on a declaration that the child was no longer a dependent. However, the mother, the other party, opposed the application citing A1’s disabilities and enrollment in a post-secondary program. Let’s delve into the complexities and implications of this case.
Background:
The couple shared two children, A1 and A2. In 2020, a final parenting order and a final order related to child support were established. These orders laid out the financial responsibilities of both parties concerning child support.
The Challenge:
The crux of the issue arose when the father sought to vary the child support terms, arguing that A1 was no longer a child of the marriage (the child was now 21 years old). This led to a court application to determine A1’s status and whether the child support terms should be revised.
The Divorce Act, in s. 2(1)(b) defines a child of the marriage to mean a child who is the age of majority or over and under the charge of the former spouses but “unable, by reason of illness, disability or other cause, to withdraw from their charge or obtain the necessaries of life”. The burden of proof fell on the applicant mother to demonstrate that A1 remained a dependent.
Where there is an issue as to whether a child is disabled, a court has clarified that “charge” in the context of disability includes “care, custody, responsible possession”. To establish that a child is unable to withdraw from the charge of his or her parents due to illness or disability, medical evidence is required.
As to whether a child’s post-secondary educational pursuits are a valid reason to continue support, the court considered whether the child’s educational pursuits are reasonable. The educational pursuit usually has to be full-time, but there are exceptions; the court can consider the overall circumstances when deciding whether full-time attendance is needed to qualify the child for ongoing support. Part-time studies could still mean a child is still entitled to support in light of the context of the surrounding circumstances.
Evidence and Analysis:
A1 had a history of ADHD and specific learning disabilities, which significantly impacted his academic journey. Despite challenges, A1 pursued post-secondary education in computer graphic design at BCIT. However, he enrolled in a reduced course load due to his disabilities, aligning with professional recommendations for his success.
The court examined various factors, including A1’s educational background, career plans, ability to contribute to his support, age, past academic performance, and parental planning for his education. It acknowledged A1’s struggles and efforts to overcome them, ultimately recognizing his status as a dependent based on his ongoing pursuit of education despite his disabilities. The court said:
“In my view, the fact that A1 is not taking a full course load is contextualized by the circumstances of his learning disabilities. There are clear professional recommendations that he obtain accommodations to address his disabilities. There is also a recommendation that A1 would benefit “from a reduced course load to maximize his ability to be successful”….” [at para 30]
“In my view, given A1’s particular circumstances, his current course load, being two courses per semester, is the same as what would otherwise be a full course load for a student without his learning disabilities. If I were to conclude otherwise, it seems to me that A1 would be unfairly penalized for purposes of considering his eligibility for continued child support because of the fact that his learning disabilities require accommodations, such as a reduced course load. ” [at para 33]
Implications and Conclusion:
The court’s decision underscores the importance of considering individual circumstances when determining whether a child is still entitled to ongoing child support, especially when disabilities are involved. It underscores the importance of thorough assessment and consideration of individual circumstances to ensure fair and equitable outcomes. It also emphasizes the need for accommodations to maximize the potential for success in education and future employment.
NOT LEGAL ADVICE. Information made available on this website is for information purposes only and is not legal advice. Do not rely on this information, nor take or fail to take any action, based upon this information. Do not disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Contact me here to discuss any specific legal issues.
March 6, 2024
B.C. Family Law Changes: Companion Animals/ Pets
As discussed in our previous blog post, in 2023/2024 there have been various changes to the B.C. Family Law Act. Schon Family Law strives to provide clients with the most current family law developments in order to provide the best legal advice and guidance. This blog is the first of a series describing the changes to the Family Law Act over the past year.
We all know that Fido is a family member, but up until recently, he was treated simply as property – no different than your Vitamix blender or a bank account. On January 15, 2024, changes to the B.C. Family Law Act came into effect. These changes concern what is defined in the Family Law Act as “companion animals.” Companion animals are those animals that people keep as pets and are not used for industry (such as farming) or service (such as a guide dog). These changes will assist people with determining ownership and possession of companion animals following a separation.
Previously the factors that determined who kept companion animals after separation were the same as those for dividing other types of property. The new changes recognize that living animals are distinct from other types of property and must be dealt with differently, including with consideration of the companion animal’s well-being.
Not only do these changes recognize the well-being of animals, but the changes are also children-focused and continue to put children’s best interests at the forefront. That is the court must consider the children’s relationship with pets when deciding who will have possession and ownership of the companion animal.
Families are of course still encouraged to resolve ownership of pets by settlement outside of court. If spouses agree on their own outside of court, they can agree to jointly own the pet, share possession of the pet, or give one spouse exclusive ownership or possession of the pet. However, if spouses cannot agree, they can ask the court to decide, and if the court does decide, only one person will be awarded possession or ownership.
In considering to whom they will grant ownership and possession of the companion animal, the B.C. Supreme Court must consider the following factors:
(a)the circumstances in which the companion animal was acquired;
(b)the extent to which each spouse cared for the companion animal;
(c)any history of family violence;
(d)the risk of family violence;
(e)a spouse’s cruelty, or threat of cruelty, toward an animal;
(f)the relationship that a child has with the companion animal;
(g)the willingness and ability of each spouse to care for the basic needs of the companion animal;
(h)any other circumstances the court considers relevant.
An order respecting a companion animal must not
(a)declare that the spouses jointly own the companion animal, or
(b)require the spouses to share possession of the companion animal.
Sections 95 [unequal division by order] and 96 [division of excluded property] do not apply to the making of an order respecting a companion animal.
These new changes mean that even if one spouse owned the animal before the relationship began, the court may not determine that the pet is that spouse’s excluded property. The court can award the pet to the other party after the condition of the above-listed factors, which the court cannot do with other types of property.
These changes will provide more clarity for families who are going through a separation and one of their family members has four legs.
NOT LEGAL ADVICE. Information made available on this website is for information purposes only and is not legal advice. Do not rely on this information, nor take or fail to take any action, based upon this information. Do not disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Contact me here to discuss any specific legal issues.
