March 8, 2024
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.
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