2011-24 — Epstein’s This Week in Family Law

2011-24 — Epstein’s This Week in Family Law
June 14, 2011
• 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
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
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.), [1993] 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.
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
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
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
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, [2001] 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, [1998] 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 [22]). 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
(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,
[2003] 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
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
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.