2011-24 — Epstein’s This Week in Family Law Date: June 14, 2011 Contents • Sale of Jointly Owned Property Before Trial • Manitoba Retroactive Spousal Support – Mellway Revisited • Alberta – Costs – When Leave to Appeal Not Required • Custody – Alienation – Contempt • Interim Support – Threshold for a Claim • Sale of Jointly Held Property – Adjustments to Proceeds • The 40 Per Cent Threshold – Section 9 Guidelines • “Father as Wallet” – Child Support for Adult Children Sale of Jointly Owned Property Before Trial Kanura v. Simpraga, 2011 CarswellOnt 1578 (Ont. S.C.J.): This is a brief decision of Justice Price in the Ontario Superior Court of Justice explaining when a party can seek a sale of the matrimonial home under the Partition Act. The facts are a little bit unusual in this case because, originally, the applicant sought an order for sale of the property and three orders for sale had been made but not implemented. The respondent now wished to proceed with the sale and the applicant wanted the family law issues tried first. This is sometimes referred to as an “interim sale” application but, of course, there is no such thing since sale orders are not interim at all. Silva v. Silva, 30 R.F.L. (3d) 117 (Ont. C.A.), is the leading Ontario Court of Appeal decision on this issue. The Court of Appeal held in that case that the Family Law Act and the Partition Act can live together in harmony but, where both statutes have application, the Family Law Act should be the statute first looked to but not necessarily the only one. Silva essentially held that where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for sale, the matter should be deferred until the issues are decided under the Family Law Act. However, if the sale will not prejudice either spouses claim with respect to the home under the Family Law Act, there is no reason to delay a sale. The issue is also canvassed in the Court of Appeal decision of Martin v. Martin, 38 R.F.L. (3d) 217 (Ont. C.A.), where Justice Osborne stated as follows: Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home, I do not wish to be taken to have endorsed the whole sale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization payment) should not be made as a matter of course. See Binkley v. Binkley, reflex, (1988) 14 R.F.L. (3d) 336(Ont. C.A.). In addition, spousal rights of possession (section 19) and any orders for interim exclusive possession should be taken into account. In this case, there was no malice or oppression or a vexatious intent and the applicant’s right to possession should not be permitted to delay further sale of the home. That was especially so when the respondent was elderly living in assisted housing and needed the money. This is a good summary of the law on sale of property pending trial under the Partition Act and Family Law Act and will be useful to keep on hand when one wishes to force a sale of the property and the other side resists. Manitoba Retroactive Spousal Support – Mellway Revisited Dickson v. Dickson, 2011 CarswellMan 96 (Man. C.A.): There has always been an issue in Manitoba about whether spousal support can be ordered retroactive to the date of separation rather than the date of filing of the spouse’s application. The earlier decision of the Manitoba Court of Appeal in Mellway v. Mellway, 4 R.F.L. (6th) 70 (Man. C.A.), led many Manitoba counsel to believe that support could not be ordered prior to the date that the application was filed, whether under the Family Maintenance Act or the Divorce Act. This, of course, was contrary to the jurisprudence in all other provinces in Canada and, in light of the recent decision of Kerr v. Baranow, 2011 CarswellBC 240 (S.C.C.), the issue should now be settled. Kerr is a complete response to the husband’s arguments that the principles articulated in D.B.S. (S. (D.B.) v. G. (S.R.), 31 R.F.L. (6th) 1 (S.C.C.)) should not be applied to spousal support cases. In Kerr, Justice Cromwell noted that the Court had to exercise a discretion in determining to award retroactive spousal support but it is clear that neither the Family Maintenance Act nor the Divorce Act are a bar to such an application. There is no discussion of Mellway in this case other than the Court simply noting that there was jurisdiction to order spousal support retroactive to the date of separation. One would have thought that if the Court of Appeal was overruling Mellway or distinguishing it, they would have made some specific mention of same. Rather, they reiterated the views in D.B.S. and Kerr and I guess they are really saying that D.B.S. and Kerr combined are Supreme Court of Canada decisions that effectively overrule Mellway. This makes eminently good sense. If Mellway was applied, it would mean that the parties would have to begin by commencing proceedings in Manitoba as opposed to negotiating in order to have support obligations running. This made no sense and was contrary to reasonable statutory interpretation. It has now been clarified and, thus, counsel in Manitoba need to be aware that spousal support claims may well run from the date of separation and that should provide a powerful incentive for counsel to move the matter on or run the risk of mounting arrears. Alberta – Costs – When Leave to Appeal Not Required Brown v. Silvera, 2011 CarswellAlta 382 (Alta. C.A.): This is a brief case on an important practice point about costs. A trial on the merits had concluded and written reasons had been issued. The reasons did not rule on the costs of the trial. An appeal from that judgment was filed with the Court of Appeal and, subsequently, the trial judge heard an argument on costs and, subsequently, delivered an award. It is that award of costs which was the subject matter of this appeal. The respondent brought an application to strike the appeal on the grounds that the appellant did not obtain leave from the Court of Queen’s Bench which granted the judgment. The appeal from the judgment on the merits was perfected and argued before a panel of the Court of Appeal and was reserved. As the Court of Appeal noted: Where separate judgments are given on the merits and on costs, the potential appellant has two options. The first option is to file one notice of appeal for both judgments. If the costs judgment is issued before the time for appealing the merits judgment has expired, one notice of appeal can include both the judgments: R. 506(4). That notice of appeal can cover a prior costs ruling, even if the formal costs judgment has not been entered, because an appeal can be filed in anticipation of the formal judgment. If to stop time running the appeal from the merits judgment has to be filed before the costs judgment is rendered, the appellant can still apply to amend that notice of appeal to add a reference to the subsequent judgment on costs. But if no amendment is made to refer to the costs judgment, it will be assumed that the appeal is from the merits judgment only: Mahe v. Boulianne, 2010 ABCA 74 (CanLII), 2010 ABCA 74, 21 Alta. L.R. (5th) 277 at para. 3. The issue on this application is whether an appellant who takes the second option (separate notices of appeal) must still obtain leave to appeal, because the separate notice of appeal respecting costs is with respect to “costs only”. The law is clear that where the appellant appeals both the merits and costs, leave is not required: Hong Kong Bank of Canada v. Wheeler Holdings Ltd., 1993 CanLII 148 (S.C.C.),  1 S.C.R. 167 at p. 210. The rationale for the rule is said to be the screening out of hopeless appeals on the issue of costs that consume an unreasonable amount of court resources. Where the appeal on the merits and the appeal and costs can be heard together, those considerations do not prevail, so no leave is required, for example, to crossappeal costs, when the merits have already been appealed: Colborne Capital Corp. v. 542775 Alberta Ltd. reflex, (1996), 38 Alta. L.R. (3d) 127, 184 A.R. 63. The issue on this application is whether an appellant who takes the second option must still obtain leave to appeal because the separate notice of appeal is with respect to costs only. The Court of Appeal noted that the law is clear that where an appellant appeals both the merits and costs, leave is not required. This was not a normal appeal because the merits were appealed in this case and this was not an appeal as to costs only. This application depended on its unique facts and the rules simply do not contemplate a situation like this where an appeal from the merits judgment is well underway before the costs judgment is even entered. The Court of Appeal noted that in the unique circumstances of this case, leave is not required. Custody – Alienation – Contempt M. (L.M.A.) v. M. (C.P.), 2011 CarswellMan 98 (Man. Q.B.): We have not seen an alienation case for several months. I hope this is a good sign, perhaps some parents are getting the message. However, the message did not reach the father in this case. This is a well-crafted judgment by Justice Thompson of the Manitoba Court of Queen’s Bench who carefully reviews the significant misconduct of the father and catalogues his attempts at alienating the children from their mother. There is a very useful discussion of parental alienation and, in particular, some extensive quotations from Dr. Stanbrook, a psychiatrist who testified about what constitutes parental alienation and its effect on children. I quote only part of Dr. Stanbrook’s report. He noted: It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn’t appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically, the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on. It is an abusive practice. It is child abuse when it occurs. It’s emotionally abusive. It cripples and stunts children’s development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in ideal situations, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation. So parental alienation is a process, an interactional process where systematically one parent’s role . . . for the children is eroded over the course of time. In the end, after carefully reviewing the evidence and concluding that the father was indeed engaged in alienating the three children from their mother, Justice Thomson ordered no contact for the two youngest children for three months and reintegration counseling for the oldest child and the mother. The father was found in contempt for blatant violation of previous court orders regarding access. Justice Thomson did what so many other judges are doing these days about contempt. That is, he made the finding of contempt and suspended the sentence until a review some few months down the road. This was to see if the father could mend any of his ways and, undoubtedly, was an incentive for him to get with the program and start to cooperate with the therapist. In addition, Justice Thomson made a multi-directional order setting out, in detail, what he expected to happen pending the review of which he remains seized. This is really a fine piece of work and demonstrates the best practices model of how to deal with alienation and its aftermath. Interim Support – Threshold for a Claim Evashenko v. Evashenko, 2011 CarswellSask 162 (Sask. C.A.): Evashenko is an important case in the Saskatchewan Court of Appeal and it overturns the chambers judge’s decision which we had commented on earlier in the Newsletter. This was an appeal from the decision of the chambers judge dismissing an application for an interim spousal support order pending her trial for spousal support. The wife also appealed the chambers judge’s order which limited financial disclosure from the application. These were very bad facts for the husband. The wife had serious alcohol problems and mental health issues. It appears that somewhat in desperation she signed an agreement in which she gave up spousal support and property claims forever. She did so, on the evidence, in the hopes of a reconciliation. The husband had tried to hang on to the terms of the agreement and he was successful below. The chambers judge thought that he should not disturb the agreement on an interim basis but, rather, leave it to the trial judge, and because the wife did not plead a property claim, the financial disclosure should be limited. The Court of Appeal, in a strongly worded judgment, took a very different view. While both the chambers judge and the Court of Appeal recognized that this agreement called for a stage-one and stage-two Miglin analysis, there was more than enough evidence to establish that the wife had a strong arguable case to impeach the agreement. The husband had significant means and the wife was virtually destitute. It did not appear on the evidence that the wife was going to have much trouble meeting either the stage-one or stage-two Miglin test thus it is not surprising that the Court of Appeal overturned the chambers judge. The Court of Appeal noted that leaving these matters to the trial judge in the face of clear ability to pay and strong evidence of need is setting the bar too high for an interim support application. This is an important message to all family law counsel, and, of course, to litigants, that a separation agreement that contains a release or a cohabitation agreement that eliminates spousal support is not immune from attack at the interim stage of proceedings. While the court has to do a Miglin analysis, the test should not be so severe as to significantly handicap an applicant who can show a prima facie case. This kind of result drives husbands crazy because they question the value of an agreement if someone can simply go to a court and, on an interim basis, have it set aside. The answer is much more complex and not every application for interim support in the face of a release is going to succeed. The Court will, on an interim basis, have to look at the Miglin test and determine the weight to be given to the agreement. That will depend on how carefully the applicant marshals the evidence to demonstrate that the agreement was not signed in unimpeachable circumstances or that it did not otherwise meet the objectives of the Divorce Act. It is not the law that drives the result on an interim basis but the facts and they have to be carefully put forward. The Court of Appeal did not reverse the chambers judge on the issue of financial disclosure because the wife got the financial documents sought via her pleadings. Clearly she should have expanded her claim and moved to set aside the property provisions of the agreement as well. Had that been the case, undoubtedly, the Court would have ordered wider disclosure. Sale of Jointly Held Property – Adjustments to Proceeds Soubliere v. MacDonald, 2011 CarswellNS 152 (N.S. S.C.): This is a concise and useful judgment about the law of partition and sale, particularly in domestic relationships. The parties lived common-law for a few years and, during that time, the home was purchased in which the parties lived as joint tenants. The parties did sign a domestic agreement that provided the parties would share the expenses thereafter and acknowledged that the defendant would receive one-half of the equity in the house and credit for his $13,000 down payment. The parties were supposed to pay the household bills out of their joint account. They never established a joint account. They never lived by the agreement and, although the applicant made some contributions, she certainly did not pay the contributions that were anticipated in the agreement. When the relationship broke down, the plaintiff moved out and the defendant changed the locks and stayed in occupation since 2006 and rented out rooms in the house. It apparently took the applicant a long time to get her claim before the trial judge but when she finally did, she was rewarded. As Justice Jollimore makes clear, as an owner of a property in joint tenancy, the applicant was entitled to bring a partition and sale application. The Partition Act creates a presumption that the net proceeds shall be divided equally. Simply put, there is a presumption in a situation of a joint ownership of equal sharing, “subject to certain equities”. There are some equities that had to be balanced here. The defendant wanted to argue that he purchased the home with his money. That does not oust the presumption. It could oust the presumption if the Court could find that the placing of the property in joint tenancy was not intended as a gift of one-half of the equity to the other party. Given the presumption, that will be hard to rebut but, on rare occasions, courts have found that the placing of property in joint tenancy was not necessarily a gift. In this case, the issue was not pursued. As Justice Jollimore noted: “the presumption of equal sharing arises from the fact that the parties elected to take title to the property as joint tenants”. The presumption does not arise from how the purchase was financed. The defendant wanted to argue that he made significantly more contributions to the upkeep and maintenance of the property. The evidence was sparse. The applicant also did work on the property. Justice Jollimore correctly declined to value each party’s contribution, finding that each did as he or she was able. The Court did, however, give the defendant credit for one-half of the mortgage and property tax payments made since separation. There was no differentiation between principle and interest and it is more common in my experience that when credit is given for mortgage payments, it is the principle payment for which credit is given as opposed to interest. Nevertheless, the total mortgage payments since 2006 were calculated and the defendant got credit for half. The husband got no credit for specific improvements that he paid for because he could neither produce invoices nor reasonable estimates. Again, all a matter of evidence. Justice Jollimore divided the equity, subtracted the mortgage payments and then made two more important adjustments. Because the applicant was excluded from the house and the defendant obviously dragged his feet with respect to sale, Justice Jollimore awarded occupation rent. A claim for occupation rent has its foundation in joint owners’ inherent entitlement to occupy the property and the defendant’s exclusion from the property and, thus, Justice Jollimore found this to be an appropriate case to award occupation rent and determined the amount to be $11,700. In the particular circumstances of this case, that seems eminently reasonable. The applicant also received a share of the rent that the defendant received during that period. At the end of the day, the applicant received about $22,000. They both had lawyers. The law in this case was relatively clear. It apparently took one day of trial. The combined costs must exceed the amount in issue and a competent mediator could have settled this case in a couple of hours. The applicant will get some costs but there are certainly no winners here. The case, however, is a useful roadmap to deal with the issues that arise from jointly held properties for parties that are not married. The 40 Per Cent Threshold – Section 9 Guidelines Gauthier v. Hart, 2011 CarswellOnt 1780 (Ont. S.C.J.): This is a decision by Justice Mackinnon of the Ontario Superior Court of Justice. It takes my breath away. I say that because I know Justice Mackinnon to be a diligent, hardworking and extremely experienced family law judge who has an enormous case-load. Notwithstanding all of that, in this case, she has taken enormous care to figure out the percentage of time that each of two children resided with each parent and determine what is the appropriate amount of support to be paid in all of the circumstances. I cannot underestimate the amount of time and effort this must have taken and it is the absolute example of best practices that work in trying to resolve these Contino-type cases. It is also a serious signal to the federal and provincial governments that the section 9 approach under the Guidelines is very difficult and costly to apply and that the situation needs to be reviewed. Trying to determine whether someone has 40 per cent of the time or not is a herculean task when done properly. This is one of the more careful analyses we have seen and it ends up in somewhat of a bizarre way since, after the careful analysis, the father comes up short by 1-1/2 days over the course of a year. I have little doubt, whatsoever, that the husband would take issue with a calculation that determines that he has the children 39.6 per cent of the time. The calculation is done based on hours and this was done in the face of errors, omissions and inconsistencies in both parties’ set of calendars. Justice Mackinnon relies on D’Urzo v. D’Urzo, 30 R.F.L. (5th) 277 (Ont. S.C.J.) and suggests that the overwhelming weight of authority in Ontario and other provinces supports calculating the 40 per cent threshold on an hourly basis. On the other hand, she notes that in Froom v. Froom, 11 R.F.L. (6th) 254 (Ont. C.A.), the Court of Appeal for Ontario did not reverse the trial judge who calculated by days. Close enough apparently applies to horseshoes, it does not apply to the 40 per cent threshold. I do note that in Froom v. Froom, cited above, the Court of Appeal said it was necessary to avoid rigid calculations and look to whether physical custody of the children was truly shared. Justice Mackinnon however, did do what I think is a very rigid calculation and which leaves the husband a tiny bit short. I would have thought that it was open to the husband to argue that 39.6 per cent rounded means 40 per cent but I also agree there has to be some threshold or there will be chaos anytime anyone gets close. Here, Justice Mackinnon tries to strike a balance and, as I said, the effort necessary demonstrates that this may not be the best way to have the statute deal with this issue. Justice Mackinnon also had to deal in this case with the situation where one parent has physical custody of the child and the parents share custody of another child. This is now being called, as Justice Mackinnon notes, the “hybrid” claim and the Guidelines do not provide a specific formula for hybrid claims. It really means that there is a claim for full table support for one child and a section 9 shared custody claim for the other. See Hofsteede v. Hofsteede, 24 R.F.L. (6th) 406 (Ont. S.C.J.): Turning to the facts of this case, the difficulty in applying the guidelines immediately becomes clear. The mother has full custody of one child and the other child is shared equally between the parents. Do I determine a separate amount of child support for Alexis and then turn to the analysis in Contino v. Leonelli-Contino, supra, only for the child Rachel or do I do an overall analysis in accordance with Contino v. Leonelli-Contino with respect to both children and then carve out the child support amount for Alexis? The dilemma was faced by Justice Merri-Ellen R. Wright in Wouters v. Wouters 2001 SKQB 142 (CanLII), 2001 SKQB 142 (CanLII), (2001), 205 Sask. R. 215, 2001 SKQB 142, 16 R.F.L. (5th) 438,  S.J. No. 232, 2001 CarswellSask 264 (Sask. Q.B., Fam. Div.), and by Justice Henry Vogelsang in Burns v. Burns 1998 CanLII 14880 (ON S.C.), 1998 CanLII 14880 (ON S.C.), (1998), 40 R.F.L. (4th) 32,  O.J. No. 2602, 70 O.T.C. 147, 1998 CarswellOnt 2478 (Ont. Fam. Ct.). Each of those judges came to different conclusions with compelling reasons. In Wouters v. Wouters, the eldest child resided primarily with the mother and the other two children spent equal time with each parent. Justice Wright was of the view that the father’s obligation with respect to the child whose custody was not shared ought to be determined in accordance with the presumptive rule in section 3. It was after that that she turned her mind to the appropriate child support payable under section 9 with respect to those children whose custody was shared. She used the Table amount for one child in determining child support for the eldest child and then the Table amount for two children in determining the appropriate set-off amount under clause 9(a) for those children whose custody was shared. The inherent assumption was that the Table amount payable by the father for three children based on his income of $40,000 was $872 when in fact the Table amount he would pay for three children in the mother’s custody would be $717. In Burns v. Burns, the parties shared custody of the oldest child and the two younger children had their principle residence with the mother. Justice Vogelsang found that the “argument advanced by the husband has the advantage of consistency with the logic of the guidelines and reality. Certainly, the guidelines recognize the principle of economies of scale. The support for three children is less than three times the support quantum for one” (paragraph ). In effect, Justice Vogelsang calculated the guideline amounts for 2.5 and .5 children and invited the parties to agree on the set-off amount. I have come to the conclusion that the rationale in the Burns v. Burns decision is the proper one, recognizing as it does the economies of scale in having more than one child in a residence. However, as directed in Contino v. Leonelli-Contino, it is the full guideline amount for the children that is used in determining the appropriate set-off amount. Although the wording of the guidelines may, at first blush, dictate that the approach in Wouters v. Wouters is the proper one, I am of the view that it is more appropriate to consider this situation under section 8 and section 9 of the guidelines rather than section 3 and section 9. Section 8 is applicable because “each spouse has custody of one or more children.” Section 9 is applicable because one or both spouses has “physical custody of, a child for not less than 40 percent of the time over the course of a year.” Mr. Hofsteede would pay guideline support of $1,063 for two children based on his income of $83,000 and Ms. Hofsteede would pay $222 for one child based on her income of $25,000. The set-off amount is $841. Justice Mackinnon adopts the approach in Hofsteede and recognizes the greater financial burden will be on the parent with primary residential custody of one child as well as the economies of scale that exist in that parent’s home and also recognizes that full table support for two children does not adequately reflect the cost of the payor who has shared custody of the second child. In this case, the underlying facts did not establish for Justice Mackinnon that the hybrid set-off provides an adequate contribution towards the mother and she adjusted the amounts. This is a very good case for an analysis of how to deal with hybrid cases, how time is calculated and applied and how difficult on some days it must be to be a family court judge. “Father as Wallet” – Child Support for Adult Children B. (M.) v. A. (F.), 2011 CarswellMan 105 (Man. Q.B.): It has been quite some time since we have seen a case on “father as wallet” but here is the latest version which canvasses much of the recent case law. It is penned by Chief Justice Monnin of the Manitoba Court of Queen’s Bench. The father was trying to terminate child support for a child that he felt had unilaterally terminated her relationship with him in an unjustified manner and should no longer be considered a child of the marriage. The child was 21 years of age at the time of this hearing. The daughter did not file an affidavit nor was there much evidence about her. Justice Monnin recognized that the filing of an affidavit by an adult child would simply increase the confrontation between the child and the parent but he did note that he would have expected something more than simple assertion in an affidavit to support an argument that this was contrary to the child’s interest. Justice Monnin ventured the thought that he did not believe that an affidavit by this 21-year-old child would have been such an imposition. It appears that the father made some efforts to meet with the child but she rejected him primarily on the basis that he had formed a relationship with another woman and that that relationship had been the reason for the separation. While the father denied it, his denials seemed to have no impact on his daughter. Some of her emails were curt and disgruntled and although there had been the occasional meeting, she clearly was rejecting her father. She did indicate at one point that she was willing to take steps to attend counseling with him but nothing came of it. This took Justice Monnin to the recent case law and what I call the “father as wallet” cases. Firstly, Justice Monnin disposed of the argument that there was no material change here and that the father had no right to vary. Justice Monnin accepted that conduct which would amount to unilateral termination could constitute a material change sufficient to engage the jurisdiction of the Court. However, he went on to recognize that cases on support of adult children are highly fact driven, and reminded us that the following questions need to be addressed when determining whether support was warranted. (1) What would the parents have decided if their marriage had remained intact? (2) To what degree is the child able to earn an income to contribute to his or her own education? (3) Are the child’s living expenses reasonable? (4) Are the child’s career plans reasonable? (5) Is the child likely to benefit from the program of study? (6) Is part-time employment available and, if so, would it harm the student’s ability to benefit from her studies? (7) Has there been an unjustified unilateral termination of a relationship with the payor parent? (8) Is the student eligible for student loans or other financial assistance? These factors, of course, are neither all inclusive nor applicable in every factual situation before the court. [See Rebenchuk v. Rebenchuk, 35 R.F.L. (6th) 239 (Man. C.A.)] These factors have also been considered in other jurisdictions and are often referred to as the Farden factors based on Farden v. Farden, 48 R.F.L. (3d) 60 (B.C. Master). In Rebenchuk the Court of Appeal noted: Termination of the parent/child relationship is a particularly difficult issue. In my view, selfish or ungrateful children who reject the non-custodial parent without justification should not expect to be supported through their years of higher education. But this factor rarely stands alone as the sole ground for denying support unless the situation is “extremely grave” (Pepin v. Jung,  O.J. No. 1779 (S.C.J.) (QL)). There have been lots of other decisions since then. See, for example, Pepin v. Jung, 39 R.F.L. (5th) 383 (Ont. S.C.J.) and Wahl v. Wahl, 2 R.F.L. (5th) 307 (Alta. Q.B.). See, also, Olszewski v. Willick, 85 R.F.L. (6th) 295 (Sask. C.A.), where the Court of Appeal for Saskatchewan noted: We agree however that unilateral withdrawal rarely stands alone as a factor disentitling an adult child to maintenance and that the threshold for such a finding is high. In Starr v. Starr, 61 R.F.L. (6th) 151 (Man. Q.B.), Justice Rivoalen noted that a 22-year-old child that had not communicated with her father for a period of 10 years, she noted: It must not be forgotten that a parent’s obligation to pay support is never founded upon consideration. There is no quid pro quo; child support is not exchanged for access. When dealing with adult children, this remains true. This is one reason why the estrangement of an adult child does not operate automatically or inevitably to extinguish the support obligation for that child. A non-custodial parent may have no access to an estranged adult child, and yet the law will in appropriate circumstances recognize and impose a support obligation. The furtherance of an adult child’s education is just one easily identified societal goal that is fostered by the imposition of such an obligation. Justice Rivoalen, in that case, found that the eldest daughter had rejected her father in a manner that was not justified, the situation was extremely grave and determined that the eldest daughter was no longer entitled to support. All of this was thoroughly canvassed in a recent decision in Caterini v. Zaccaria, 2010 CarswellOnt 9344 (Ont. S.C.J.), in which Justice Pazaratz engaged in a thorough review of the case law. He commented on Justice Corbett’s paper on Child Support for Estranged Adult Children, in which Justice David Corbett of Toronto said the following: (a) Contrary to certain recent literature, there has not been “growing judicial recognition” that the quality of the relationship should have a bearing on child support. (b) Courts have been willing to impose a few specific responsibilities on adult support recipients, and may properly do so, but not conditions that include maintaining a social relationship with a parent. (c) The statutory basis for taking the quality of the child-parent relationship into account is dubious. (d) There is appellant authority permitting the court to place some weight on the parent-child relationship, but that authority is more ambiguous than trial and motions court decisions suggest. (e) On the current state of the law, there seems to be a discretion to take this factor into account, though few courts do, and fewer have found it a significant factor in a support decision. (f) The better view is that if conduct is ever relevant, it should only be in truly egregious cases of misconduct by a child against a parent. I note, parenthetically, that (a) above is probably a comment on the paper written by Ilana Zylberman and me, some years ago when we stirred the debate by looking at this issue and some recent cases. We noted in that paper that there was a growing judicial recognition that the unilateral termination of the relationship might be a factor in the termination of support. We did not say that there was a growing judicial recognition that the quality of the relationship should have a bearing on child support and we agree with Justice Corbett that that is not the case. I do remain of the view however that in cases such as Starr v. Starr, there are circumstances that are so extreme that to order a payor to continue child support in those circumstances would be inequitable. Justice Monnin says: In summary, the case law would suggest that a child’s rejection of the parent, even if unjustified, is only a factor which can be considered in removing the obligation of the parent to support the child. Even in situations where the breakdown is “extremely grave”, it would be rare that the parental rejection is the only factor leading to the termination of child support. I agree that parental rejection as the only factor is not generally going to lead to a termination of child support. In fact, those circumstances would be very rare indeed and, in any event, on a factual analysis, it is very difficult to establish that the termination of the relationship is in fact unilateral by the child. Usually it is a mixture of both alienation and estrangement and it is a difficult issue to sort out. In the end, in this case, Justice Monnin was not able to cast blame completely on one side of the relationship and, therefore, could not conclude there had been a unilateral termination based on the facts before him. He did make the following interesting comment: Finally, I also conclude that it would be contrary to the jurisprudence to terminate the obligation for support solely on the basis of a finding of unilateral termination of the parent/child relationship in the circumstances of this case. An assessment of the daughter’s situation, including the other factors referred to in Rebenchuk, would be required for this to take place. The failure of the daughter to take meaningful steps to support the relationship would be one of the factors that could be considered in an assessment, but would not necessarily be determinative of the issue. I would therefore dismiss the respondent’s application to vary, without prejudice to his ability to seek a review of the obligation to support his daughter on the basis of a complete assessment of all factors as referred to in Rebenchuk, including the status of his relationship with his daughter as a factor. These are always difficult cases. No one wants to blame the children for the breakdown of a relationship between the payor and the child and no one wants to engage in a minute examination of conduct. On the other hand, for the child support law to be respected and complied with, there must be some balancing factors and in the cases where the evidence is overwhelming that there has in fact been a unilateral termination of the relationship and there are also present other factors as outlined in the Farden or Rebenchuk, consideration has to be given to the payor’s argument that he may well be entitled to some relief.
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